Wednesday, 19 March 2014

4. Law Enforcement 1718-1775: Negotiation, Mediation and Arbitration in 18th Century Yorkshire

Before the advent of a national police force, a number of discretionary options were available to a victim of crime in responding to the crime committed against him or her: deciding whether to take an active role in pursuing a prosecution, to exercise mercy by negotiating a private settlement, or remain passive and fail to respond to the offence. Friends and neighbours often acted as mediators within local networks but if a victim of crime failed to report the offence nothing was done to prompt the judiciary to respond: only the most serious crimes which touched on the authority of the State were prosecuted by central or local government.
It is possible that neighbours or family members argued for informal dispute resolution where the perpetrator was a member of the same community and, in some instances, local attorneys (solicitors) and counsellors (barristers) played an important part in the private settlement of disputes. The work of attorneys John Howarth of Ripponden, near Halifax (1721-1804) and John Eagle of Bradford (1723-1787) reflected the mercantile society of the West Riding during the second half of the eighteenth century.[1] The majority of their clients were men drawn from the upper and middling classes and women appear to have made up less than eight per cent of their client base. Much of their work concerned civil matters (conveyances, bankruptcy and wills), although, both men acted as arbitrators in disputes over debt, trespass, assault and the like amongst neighbours. The purpose of arbitration was to reach an amicable settlement but it also allowed attorneys, counsellors, esquires and gentlemen to take a ‘paternal’ role within their communities and an intermediary one amongst their peers, when ‘gentlemen’ acted as judges of other ‘gentlemen’ and merchants, clothiers and yeoman acted as arbitrators in disputes between men concerned in similar trades.
18th Century Chastisement: French illustration
Recourse to the judicial process was unnecessary if the victims of crime were able to deal with offenders directly through physical retribution (which carried with it risks of its own) or some private arrangement. When Michael Smith was suspected of having murdered his wife Mary Honeyman, a neighbour, reported that following a previous assault she had acted as an intermediary between the couple, persuading his wife to return home in exchange for the husband’s promise that he would stop beating her.[2] Marital violence was a particularly difficult subject when society accepted that married women were subject to the exercise of ‘reasonable’ chastisement by their husbands, although the law distinguished between ‘beating’ and ‘chastisement’:
And though our Law makes Woman subject to the Husband, yet he may not beat her, but she may pray the Peace against him; and he shall find surety that he shall neither do nor procure to be done, any Bodily Damage, otherwise than appertains to the Offence of a Husband, and for lawful chastisement.[3]
The relative absence of allegations of assault by a spouse in the court records is not unexpected, although, a few husbands and the occasional wife were bound to ‘keep the peace’ towards their partners, the subject for a future blog.

The single justice
The Bosky Magistrate: The British Museum
 Drawn by J. Nixon Esq, Engraved by Zeigler, Publisher Willm Holland  
Once apprehended, a suspect could be brought before a magistrate, either in his own home or at the court house, where he had some statutory powers to hear and determine offences and punish an offender on his own judgement following the confession of the offender, or on the examination and proof of witnesses.[4] It is not possible to define accurately the extent of the powers of the solitary magistrate as they inherited powers which predate the creation of justices of the peace and allowed them to execute any statute, even though no express powers were given to them in the same statute.[5] Single justices undertook numerous administrative and judicial functions, including the examination of suspects and witnesses in cases of felony, taking recognizances for appearances in court, and committing suspects and vagabonds to prison. Although it lay beyond his powers to fine a person for a felony, he was, for example, authorised to fine or whip a person for trespass.
Such was the importance attached to the rights to property (and the protection of those interests) that compounding a felony by reaching a private settlement for the restitution of goods and/or other compensation, was proscribed in law: in such circumstances, a victim of theft who compounded the felony might face prosecution. Few references to compounding a felony can be found in the record books for Yorkshire, however, when John Clarkson was accused of that offence the grand jury of Wakefield rejected the bill against him, perhaps indicating that they did not regard his action as truly criminal, although at least one member of the community had been sufficiently incensed to lay the initial bill of complaint.[6]
Reverend Edmund Tew: Christ's Hospital Foundation
The notebook of the Reverend Edmund Tew, a magistrate for neighbouring Durham between 1750 and 1770, indicates that nearly 50 per cent of his time was taken up with resolving private grievances that might otherwise result in court proceedings and that 40 per cent of the complainants were female.[7] In matters of trespass to the person or property, victims may have been more inclined to accept informal mediation offered by a magistrate, rather than pursue formal proceedings against an accused.[8] By these means, a significant number of accusations would have been resolved directly by the local magistrate; thus weeding out a range of minor complaints and petty crimes from the formal judicial process. Unrepresented and innocent defendants may have been persuaded (or intimidated) to reach an early compromise with a complainant, rather than run the risk of a criminal conviction at quarter or assize sessions which attracted an additional fine, corporal punishment or imprisonment.
Petty Sessions
The powers of justices increased when they sat in pairs (‘petty sessions’) and by the eighteenth century they determined a wide range of petty offences without the assistance of a jury.[9] They were empowered inter alia: to take a recognizance from an alehouse keeper to keep the peace; to imprison a servant for up to one year for an assault on a master; and to punish those who embezzled cloth.

Magistrates were bound (in theory) to commit any person accused of a felony to gaol pending trial and the length of time spent on remand depended on whether the complaint was referred to the following quarter sessions or the bi-annual assizes. In such circumstances it is possible that many victims took advantage of the remand system to punish an accused man or woman with a short spell in gaol or the house of correction, without necessarily going to the lengths of pursuing the prosecution by appearing for the trial. By such means, a short spell in the court’s cells awaiting trial might serve as sufficient warning of worse to come to first time offenders. John Howard’s report on the prisons of England and Wales includes a description of the town gaol in Sheffield, of “two small rooms, the largest only about eight feet square, and six high”.[10] Quarter sessions were held in Sheffield on alternate October sittings and the number of criminal cases recorded for each session during the periods immediately before Howard’s inspection was: twenty-nine men and four women in October 1770, ten men in 1772, and eight men and three women in 1774. Even if only a few men and women were held in each cell for a short period before they were called for trial, only for some to find that their accuser had failed to appear to prosecute the case, the experience was likely to have been extremely distressing.
John Howard by Mather Brown
It is generally accepted that the powers extended to the solitary justice and those sitting at petty sessions allowed for the vast majority of disputes to be settled under their summary powers, leaving the only more serious offences to be determined by trial at assize or quarter sessions. Historians differ in their interpretation of the significance of summary proceedings: some argue that summary proceedings placed defendants at a procedural disadvantage (compared with proceedings in the higher courts), largely because they granted the power to pass judgement while dispensing with lawyers and the rules of evidence. Others, including Norma Landau, couch their criticisms in terms of the abuse of power by local magistrates which operated to the disadvantages of both the accused and accuser.[11] While the scarcity of surviving sources pre-1780 prevents a thorough analysis of pre-trial proceedings to support such claims, in practice, any magistrates who acted in too outrageous a manner risked civil unrest and unsettled communities.

[1] Miles, M. (1984) ‘ “Eminent Practitioners”: The New Visage of Country Attorneys c. 1750-1800’, G. R. Rubin and D. Sugarman (editors), Law Economy and Society, 1750-1914: Essays in the History of English Law, Abingdon: Professional Books Ltd, pp. 470-503.
[2] TNA ASSI 45/31/1/282 (1773), information of Mary Honeyman.
[3] Anon. (1732) A Treatise of Feme Coverts: or the Lady’s Law, London, p. 81.
[4] Dalton, Michael (1705) The country justice: containing the practice of the justices of the peace out of their sessions, London: William Rawlins and Samuel Roycroft.
[5] 13 Edw. I (1285) Statute of Westminster, provided that each district or hundred was responsible for unsolved crimes committed within its boundaries; 1 Edw. III (1327) Justice of the Peace Act, created the post of justice of the peace, building on the earlier role of conservators of the peace.
[6] WRY Wakefield, QS4/29 210-215, 4 February 1742.
[7] Morgan, Gwenda and Peter Rushton (eds) (2000) The Justicing Notebook (1750-64) of Edmund Tew, Rector of Boldon, Suffolk: The Surtees Society . Tew’s jurisdiction fell within the Palatinate Court of Durham and there may have been some variations in the powers exercised in Yorkshire and Durham.
[8] Statute of Northampton 2 Edw. III, c.3 (1328) empowered justices of the peace to hear and determine complaints in trespass. Over time, the term trespass came to include not only trespass to property, riots and affrays but also trespass to the person in the form of an assault.
[9] Dickinson, William esq., (1820, second edition) A practical guide to the quarter sessions and other sessions of the peace, adapted to the use of young magistrates, and professional gentlemen, at the commencement of their practice, London: J. & W.T. Clarke, pp. 2-3.
[10] Howard, John (1777) The State of the Prisons in England and Wales, Warrington: William Eyres, p. 412, report of inspection 28 October 1776.
[11] Landau, Norma (Spring, 2005) ‘Summary Conviction and the development of the Penal Law’, Law and History Review, vol. 23, No. 1, pp. 173-189.

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