Tuesday, 25 February 2014

2. Law enforcement 1718-1775: Detection of crime.

In 1735 Hester Norton was accused of stealing a number of small items in gold and silver, money and clothing from her former employer, George Gray of Stillingfleet. Gray was made aware that Norton was the thief when she tried to sell a silver tumbler to William Thompson who lived seven miles away in York. Having heard something of Norton’s bad character, Thompson concluded that she had stolen the item and reported his suspicions to a magistrate. Following further enquiries, Gray was located and he identified the tumbler as his and reported an extensive range of other missing items. Norton confessed to the theft of the tumbler and two gold rings and Gray was bound in the sum of £20 to prosecute her at the following assizes.[1]

The case of Hester Norton is fairly typical of pre-trial procedures in operation during the eighteenth century in which the task of identifying and pursuing an offender fell on the victim or some other private individual who took an interest in the matter.

William Hogarth, The Four Stages of Cruelty:
                                                       Cruelty in Perfection, 1 February 1751

Deposition statements taken by a magistrate (or coroner) from victims, witnesses and the accused were not submitted as evidence in a trial but formed the basis of committal papers for trial at the assizes and provide a useful tool for examining how suspects were identified and evidence gathered. Local knowledge and the support of the community were essential in assisting the victims of crime who were expected to take the lead role in the detection, arrest and committal of suspected criminals. When Thomas Aikney was accused of the murder of John Boardingham by stabbing, nine year old Mary Boardingham provided the evidence that identified Aikney as the culprit, recognising the knife left at the scene of the crime as one she had seen in Aikney’s possession.[2] While John Palmer (aka Dick Turpin) was finally captured when his handwriting was recognised in a letter he sent to his home, thus revealing his new identity.[3]

Many women were active in the detection and reporting of crimes committed by or against other women. Married women and widows were commonly called to view the corpse of a woman or child, as a matter of decency and for their ‘expert’ knowledge of the female body and birthing process. It allowed married and widowed women to participate in the detection and reporting of crimes committed by men as, for example, when George Bulmer was charged with the murder of his wife following the examination of her body by the five women who had been called to lay her out.[4]
Married or widowed women were often the first people to examine the victims of rape, so that when Jane Bray claimed that she had been raped two midwives examined her body for evidence of bruising and other injuries.[5] Married and widowed women were also called to examine single women suspected of being pregnant or having committed infanticide. They could be asked to examine an accused woman’s breasts for signs of milk or search her room for signs of recent labour and delivery. When Isabel Ward was accused of infanticide in 1741, one of the churchwardens asked a midwife to examine Ward as he suspected that she had recently given birth.[6] When Jane Brown was suspected of having given birth to a bastard child and burying the body, her master went so far as to instruct the local blacksmith to make an instrument to enable him to search a vault in which he suspected she had dropped a baby. Using the purpose-made tool, the body of a baby was discovered.[7]

As Laura Gowing observed, “the governing institutions of early modern England devoted a considerable amount of time to the prosecution of women for sexual offences”.[8] There was good reason for that, when sexual impropriety touched on the laws of inheritance and the consequences of a sexual liaison outside marriage presented a potential burden on the parish rate which affected and, therefore, interested the constables, overseers of the poor and other concerned rate payers.

Any woman might assist in the detection of stolen domestic goods when they were removed from the home or noticed at another location. The case of Mary Ormand is illustrative of the world of female criminality, in which women might quite easily dispose of stolen household goods and clothing within their circle of friends and neighbours. However, the Transportation Act of 1718 provided inter alia, that anyone sharing in benefit of theft was deemed to have committed a felony on same terms as the principal offender, unless they turned evidence against them.[9] Therefore, ‘female solidarity’ was likely to be an early casualty when suspects were persuaded to turn king’s evidence against their co-accused. When Ormand and three female co-defendants were accused of the theft of clothing, her co-defendants and other female associates gave evidence against her.[10] At the subsequent trial only Ormand was convicted, highlighting the fragility of friendships when the law intervened and threatened to sentence a thief to death or transportation but offered a way out to an accomplice who was willing to give evidence against a friend or neighbour.

Local magistrates generally took a passive role in the investigation or detection of general infractions of the criminal law, issuing warrants to local constables or bailiffs to search and arrest suspects at the request of a victim of crime. They took a more active role in the investigation and prosecution of indictable offences such as aggravated thefts, coining, forgery, treason and murder. Mary Ormand’s biggest mistake was to steal from the house of Sir William Lowther, M.P. for Pontefract, which meant that her crimes were personally, and thoroughly, investigated by a magistrate on his behalf.

Resources for the detection and arrest of suspects benefited from developments in the way information could be disseminated through handbills and newspapers. For example, a bill of costs for bringing an indictment for theft against Mary Lambert Powell in 1767 included 3s 6d for the production of 300 advertisements.[11] Newspapers became increasingly available during the course of the eighteenth century and reward notices for the return of stolen goods appearing in newspapers illustrate the reliance on amateurs in the enforcement of the criminal law. Notices for stolen horses featured prominently, while other notices called for the return of household goods, and it is likely that they were placed by men and aimed at men who bought and sold horses at the local horse fairs, or men and women who frequented the local market place, inns and other public places where stolen goods could be disposed of.

Thomas Rowland: The Rag Fair.
                 Rosemary Lane, n_d_, late eighteenth century_ British Museum, Binyon

Successful policing relied on the observations of the public to notice some form of disorder, then decide what to do about it, what to say about it and to whom to say it. As a result, not all suspects were apprehended and even some of those who were detained never appeared in court. Without a national police force civil order was maintained by a hierarchal system of ‘legal’ authority, ranging from the parish constables to the justices of the peace, sheriffs, judges, secretaries of state and, ultimately, the king. At the lowest level, authority within the family lay with the head of each household, who was usually a man. While widows had some independence, the rights of wives, children and servants were subsumed within those of their husbands, parents and employers. Nevertheless, some women in Yorkshire played a significant role in the detection of crimes, reporting on thefts and their suspicions on hidden pregnancies and untimely deaths, affording them an important role in the pre-trial process.

[1] TNA ASSI 45/20/2/129-132, (1735), depositions and recognizance in the matter of Hester Norton.
[2] TNA ASSI 45/32/2/11 (1776), information of Mary Boardingham taken before Richard Cross, coroner for the East Riding of Yorkshire.
[3] Anon., ‘Dick Turpin - hero or villain’, York Castle Museum: Collections, www.yorkcastlemuseum.org.uk/Page/ViewCollection.aspx?CollectionId=24, accessed 10 July 2012.
[4] TNA ASSI 45/32/1/40-4 (1775), depositions taken in the matter of George Bulmer.
[5] TNA ASSI 45/21/3 ff. 52-54, 1739, depositions in the case of John Elliott.
[6] TNA ASSI 45/22/1 ff.168-169, May 1741, depositions in the case of Isabel Ward.
[7] TNA ASSI 45/28/1/5 (1764), examination of Peter Reynolds, blacksmith.
[8] Gowing, Laura (1998, first edition 1996) Domestic Dangers: Women, Words, and Sex in Early Modern London, Oxford: Oxford University Press, p. 3.
[9] 4 Geo. I, c.11 (1718), An Act for the further Preventing Robbery, Burglary and other Felonies and for the more effectual Transportation of Felons.
[10] TNA ASSI 45/20/1/ 63-94 (1735), depositions and recognizances in the matter of Mary Ormand and Elizabeth Torton; TNA ASSI 41/2 ff. 119, City of York gaol delivery record for 11 March 1735.
[11] ERY Beverley, QSF/236/B/1, Midsummer 1767; ERY Beverley, QSF/242/D/2.

Sunday, 23 February 2014

1. Law enforcement and the criminal courts of Yorkshire, 1718-1775: an introduction.

This is the first of a series of blogs concerning the criminal justice system in operation in England between 1718 and 1775, using data collected from the quarter sessions and assize courts for Yorkshire, in a period prior to the creation of the Home Office (1780) and the centralisation of reporting systems. The majority of similar studies are based on records drawn from the Old Bailey, Middlesex and Surrey: the aim of these blogs is to consider records from beyond the London region, compare the work of both tiers of courts, and analyse gendered attitudes represented in those sources.

The themes covered cross the academic fields of social and legal history, so that legal processes can be understood by the student of social history and gender studies, and the social context clarified for the law student.

Why 1718-1775?
The period 1718-1775 was unique in terms of criminal court proceedings: it begins with the Transportation Act 1718 which determined that a statutory order for transportation to America for seven years would replace the common-law punishment of branding for first time felons who might claim the benefit of clergy; while transportation to America for fourteen years became the common response to a reprieve from a capital sentence.[1] Following the American War of Independence (1775) transportation to America was no longer a sentencing option and in response to the subsequent burden on the prison system the government found a solution in the creation of penal colonies in Australia.

Benefit of Clergy
Historically, men convicted of a first common law felony could claim the ‘benefit of clergy’ if they were able to read a verse from the Bible (known as the ‘neck verse’), following which they would be branded on the hand or thumb (with a ‘T’ for theft, ‘F’ for felon, or ‘M’ for murder, so that they would be unable to receive the benefit more than once) and then released.[2]

The ‘neck verse’, Psalm 51, verse 1:
Have mercy upon me, O God, according to Thy loving kindness:
according unto the multitude of Thy tender mercies blot out my transgressions.

Statutes of 1623 and 1691 extended the benefit to women[3] and when the reading test was abolished in 1706 the benefit was universally applied to anyone convicted of a first common law felony.[4] However, the passing of the Transportation Act in 1718 saw a steep decline in the number of men and women branded and discharged for a first felony, in favour of their being transported to America for a term of seven years (a far harsher sentence). At the same time, the number of offences to which the benefit of clergy applied diminished as legislators failed to extend the benefit to any new statutory felonies.

The ‘Bloody Code’
Contrasts in the experiences of men and women within the judicial process during the seventeenth century compared to experiences and outcomes during the eighteenth-century were largely due to an increase in the number of statutory offences created between 1680 and 1820, when the number of capital offences increased from about fifty to two hundred under the ‘Bloody Code’. Since the time of Henry I, capital sentences applied to a wide range of offences, from the theft of an item valued in excess of one shilling to murder,[5] even though, as the result of inflation, the value of the shilling had severely diminished since the sixteenth century; thus elevating many minor crimes to the level of a capital offence. Nevertheless, responses to reports of parliamentary committees during the second half of the eighteenth century made it clear that the House of Lords were opposed to any relaxation of the criminal law, an increase in the value threshold for grand larceny in excess of one shilling or the repeal of the death penalty.[6] In the absence of a system of centralised record keeping the government failed to recognise that, although rising levels of population and urbanisation meant that the numbers of crimes committed increased during the eighteenth century, in reality, per capita crime levels had been falling from the beginning of the eighteenth century.[7]

The government was unlikely to avoid serious public disturbances unless the excesses of the ‘Bloody Code’ were mitigated through the exercise of restraint by the judiciary and recommendations for the king’s mercy. The exercise of the King’s prerogative of mercy was a conventional practice which received statutory recognition under Henry VIII[8] and described by Leon Radzinowicz in terms of judicial philanthropy.[9] However, as Douglas Hay observed, it also allowed the judiciary to respond to capital statutes drafted in haste and fear of “the spectre of county towns festooned with corpses”.[10] Accordingly, the judicial process provided a system of rules, procedures and precedents which served as a counterbalance to the excesses of the ‘Bloody Code’. The pardon system enabled the courts to make an example of one offender in order to reconfirm a particular law, without attracting too much local hostility by the frequent executions of other offenders.

The National Archives, State Papers, SP 44 - grant of a free pardon.
By undertaking a detailed examination of primary records from the quarter sessions and assizes for Yorkshire it has been possible to analyse that material in relation to the pre-trial and trial processes in respect of specific offences against property and the person. It allows for consideration of the evidence of changing attitudes to gendered leniency by examining the interplay between the rules of law, evidence and procedure, and the exercise of discretion in interpreting those rules. Within these blogs I will also offer my explanations for the failure to record some outcomes in the legal records (by examining options for out-of-court settlements) and propose non-gendered reasons why some accused were acquitted (when alleged crimes fell short of the statutory definitions of specific offences and/or rules of evidence).

[1] 4 Geo. I (1718), Act for the further Preventing Robbery, Burglary and other Felonies and for the more effectual Transportation of Felons.
[2] After 1718, minute books for the northern circuit (which includes Yorkshire) tend to refer to ‘benefit of the statute’ rather than ‘benefit of clergy’.
[3] 21 Jac. I, c.6 (1623), An Act concerning Women convicted of small Felonies; 3 Wm. & M., c.9 (1691) Benefit of Clergy Act.
[4] 6 Anne, c.9 s. 4 (1706), An Act for punishing felons, provided that reading was no longer required of persons pleading benefit of clergy.
[5] Blackstone, William (1765, first edition) Commentaries on the Laws of England: Of Public Wrongs, vol. 4, Oxford: Clarendon Press, p. 238.
[6] Radzinowicz, L. (1987, first published 1948) A History of English Criminal Law and its Administration from 1750: The Movement for Reform, vol. 1, London: Stevens & Sons Ltd, pp. 402-403.
[7] Rowbotham, Judith (2010) ‘Execution as Punishment in England’, Kilday, Anne-Marie, David S. Nash (2010) Histories of Crime: Britain 1600-2000, Basingstoke: Palgrave Macmillan, pp. 180-202, p. 182.
[8] 25 Hen. VIII, c.19 (1533-1534 ) an Act for the submission of the Clergy to the King.
[9] Radzinowicz,  A History of English Criminal Law, vol. 1, p. 137.
[10] Hay, D. (1975) ‘Property, Authority and the Criminal Law’, in Hay, D., P. Linebaugh, and E.P.
Thompson, (editors) Albion’s Fatal Tree, London: Allen Lane, pp. 17-64, p. 57.