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.
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’, 2010) 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.
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