Legal Issues and Practices, 1840s

NOTE: The following selection of newspaper reports illustrate various legal issues and the practices of the law courts and punishment of homosexual offenders.

Thursday 22 August 1844

Cartwright Buckle, indicted for an unnatural offence at Prestbury, was acquitted, the Judge considering the evidence did not sustain the charge as laid in the indictment. The Judge – “Let him be at once discharged, that he may not contaminate the other prisoners.” (Cheltenham Chronicle)

Saturday 24 August 1844

(Before the Lord Chief BARON)
His Lordship took his seat on the bench at eight o'clock.
Edward Standing, 57, and James Taylor alias William Starkie, 21, were indicted for having committed an abominable crime, at Bury, in May last.
          Mr. HULTON stated the facts of the case, and afterwards called several witnesses, with the view of establishing the case against the prisoners. One of them (Standing) admitted, in a statement he made on his apprehension, and which was taken down in writing by one of the officers, that the offence had been completed.
          His LORDSHIP censured the conduct of the officers in taking down the statements of prisoners, a matter which belonged only to the proper officers of justice; and also spoke of the improbability of such a document being genuine, when the circumstances under which it was obtained were considered.
          The jury retired, and after being absent about a quarter of an hour, returned with a verdict of acquittal for both prisoners. (Liverpool Mail)

Saturday 24 August 1844

REFUSAL OF A WITNESS'S EXPENSES. – An application having been made by Mr. Hulton for costs in the case of Strandring [sic] and Taylor, tried for an unnatural crime, at Bury, the learned Judge said he should allow all but the expenses of the witness Collins, who had taken one of the prisoners to his own private house, and instituted a private examination, and taken down a statement in writing instead of making a complaint to a proper officer. He (Collins) had become a witness by doing one of the most irregular things that had ever come within his knowledge since he became connected with the administration of justice. He felt compelled to refuse the costs to such an individual, in order to make his reprobation of such a mode of dealing with an accused person, whatever might be the accusation against him. (Manchester Courier and Lancashire General Advertiser)

Friday 6 December 1844

[Address by the Judge to the Grand Jury:]
. . . The Learned Judge then said there was one case to which he should call their attention; that of a man charged with an unnatural crime. If the evidence would not sustain the completion, but only an attempt, it would be better to throw out the bill, and have another sent up for a misdemeanor. It would, therefore, be desirable, in examining the witnesses called before them, to inquire a little more closely into the facts. It was a very common thing to put a prisoner on his trial by the Grand Jury, almost taking for granted the completion of the offence; but, upon closer examination, it turned out that there was not sufficient evidence to satisfy them – only evidence of an attempt – a misdemeanor, not a felony. If there was any difficulty in sustaining the charge of felony, they could throw out the bill, and have another presented before they were discharged, thus preventing the unpleasant necessity of going twice through the evidence in open court. In one particular case he tried at Warwick on Saturday last, in his charge to the Grand Jury he recommended them to throw out the bill if the charge was not clearly made out. They did not do so; the bill was returned, the Grand Jury discharged, the prisoner acquitted and suffered to go at large. (Coventry Standard)

Monday 27 January 1845

At the meeting of the Marylebone vestry on Saturday . . . Sir PETER LAURIE said . . . he remembered when Lord John Russell wanted them, in the City, to pull down Newgate and rebulid it with separate cells, on the solitary principle, and offered to give them l70,000l. out of the Consolidated Fund, they rejected it because they considered the principle cruel and inhuman. (Hear, hear.) They were told that many persons were anxious for separate cells, in order to escape the contagion of crime. Well, they tried the experiment by erecting fifteen of these cells, but not one volunteered to go into them, and they were then reserved as an extreme punishment for persons convicted of unnatural crimes. (Morning Post)

Saturday 29 March 1845

We have been at considerable trouble in obtaining the following list of executions that have taken place at Aylesbury, during the last 50 years, which, we have no doubt, will be interesting to many of our readers. . . .
          George Capel, aged 66. Committed the 30th of July, 1833, by Phillip Duncombe Paunsforte Duncombe, Esq., on the oath of William Daniel and others, with having, on the 27th of July, at the parish of Fenny Stratford, committed an unnatural crime. He was executed on the 21st of March, 1834. (Bucks Gazette)

Saturday 12 July 1845

. . . In the course of the last ten years the police of this country has been greatly improved, and I believe that the greatst increase of crime has taken place where the police is most efficient – in London. Some persons say that the police bring to light infractions of the law, and thus tend to prevent crime by detecting it. Still we look for the result, and when we find that crime goes on steadily increasing, we must admit that the police has failed in that which would have been the most desirable result of its improvement – the prevention of crime. The diminuation of capital punishment is another means which, it was urged, would, in the end, effect a diminution of crime; but I regret that the result has proved otherwise. In those very cases where capital punishment has been put an end to, crime has most increased. Last year there was a great increase in the number of murders and child murders. Perhaps the latter is a crime which escapes the punishment due to it oftener than any other for every artifice is used in order to prevent conviction and punishment. In rapes, assaults with intent, &c., there has also been an increase. Murders have increased 43 per cent.; unnatural crimes 39 per cent.; and rapes and attempted violations, 33 per cent. . . . (Hertford Mercury and Reformer)

Thursday 11 December 1845

[Judge's address to the Grand Jury:] . . . There were two or three cases of manslaughter, and some heinous offences, to which it was necessary for him particularly to allude, but if convicted of which the lives of the prisoners might be forfeited. They were horrid offences. In one, No. 17 in the calendar, in which a prisoner of the name of James Fletcher was accused of having, at Heap, feloniously committed an abominable crime, the charge was to be proved by circumstantial evidence. This was the first time in his (the learned judge's) experience, in which he recollected such a charge was sought to be proved by circumstantial evidence merely. There was another of the same class of cases in the calendar, in which the offence would be sought to be proved by direct testimony; and there it would be for the Grand Jury to say whether it was so complete in point of law, as to bring it under the head of capital offences. . . . (Gore's Liverpool General Advertiser)

Saturday 21 February 1846

EXPENSES OF PROSECUTIONS FROM THE BOROUGH OF LEEDS. – The following bill of expenses for the prosecutions of prisoners from ths borough, at the last Winter Gaol Delivery, was submitted to the meeting of the Town Council, on Wednesday week, and ordered to be paid:–
          . . . William Beck, for unnatural offence       6 19s. 5d.
          . . . John Barker, for unnatural crime           24 8s. 11d.
          (Leeds Intelligencer)

Saturday 21 March 1846

At the last session of the Central Criminal Court, the learned recorder told the grand jury, that 2,678 individuals had been committed to Newgate in the year 1845, independently of those sent to Middlesex and other prisons.
          . . . In the same Criminal Returns for 1844, page 7, comparing the period of five years ending in 1844 with the prior period of five years, it is stated, that on the whole class of crimes against the person, there is an increase of nearly 14 per cent.:– “In murder and attempts to murder and maim, it was nearly 43 per cent. In the unnatural offences, 39 per cent.; in rapes and attempts to ravish, 26 per cent.” . . . (Dublin Evening Post)

Friday 15 May 1846

The controversy between the advocates and opponents of the abolition of capital punishment really turns upon the principle of punishment. Is it retaliatory and vindictive? or is it preventive, reformatory, and remunerative to the sufferer
          This statement would, we are aware, be objected to by many defenders of capital punishment. They profess to have renounced the old and barbarous principle of vindictiveness, and merely to uphold the gallows as the most effective agency of prevention. Were the fact granted, the ends of punishment would still be answered very imperfectly. There is no prospect of reformation for the culprit. He is abandoned as incorrigible. Such abandonment is a cheap and easy thing; it avoids expense and trouble; it foregoes the toilsome search after modes of punishment which may combine the influences of prevention and reformation; and, hastily assuming their non-existence, leaves human beings to hang while legislators shrink from solving one of the most important problems of legislative science.
          The remuneration to the injured which the gallows affords can only be of one kind: the gratification of revenge. It is valuable to them exactly in proportion to the strength of this feeling in their hearts. The scaffold is a platform from which Law preaches the morality of vengeance. The practical appeal of an execution to the injured is: “Look there; he is stangled; are you satisfied?” Ampler provision for this species of satisfaction was formerly made, by tortures previous to death, and ignominious treatment of the body afterwards. Law now ministers to it more sparingly, in these particulars; but it makes some compensation for that diminution by the greater rarity of the infliction. Generally, we believe, the parties most wronged by crime decline to avail themselves of the consolation offered them by the law. They do not come to feast upon the sight, even of the murderer's pangs. They are not so vindictive as the law assumes. They are only partially, or not at all, under the power of that dark passion to which law promises an acceptable sacrifice. They will not “take the good the laws provide them.” In catering for revenge, the law says, “evil, be thou my good.”
          For two, therefore, out of the three influences now generally acknowledged as the objects of punishment, death either does nothing, or it does worse than nothing. It leaves the criminal unreformed from his vices; and, if the injured parties who survive are vicious also, it pampers and cherishes vice in them, and feeds vindictiveness with a “sweet morsel to roll under the tongue,” from which the purer palate recoils as deadly poison.
          The strongest case, then, which can be made out for the Punishment of Death, leaves it miserably imperfect. It must fail in much which all punishment ought to accomplish. It is a bad punishment, at best. Neither remunerative nor reformatory, its worth rests solely upon the assumption of its preventive influence. We do not deny nor seek to depreciate, the importance of this agency. Nay more; we allow that prevention should be the first point to be ascertained by a legislature. The security of society is entitled to precedence over the interests both of the wronger and the wronged. Precedence is, however, a very different thing from exclusiveness. The complete attainment of the primary object of punishment, does not exonerate the legislator froms triving earnestly for the accomplishment also of its secondary objects.
          The claim set up for capital punishment, is that it is not only preventive, but the surest of all preventions. It is said to be the most dreaded, and the most deterring. Well then, on this hypothesis, we are in possesson of an inestimable secret in legislation. We know of a punishment which, more than any other that has been devised or tried, deters from crime. We have a power unrivalled for prevention, and consequently for the security of society. The consequent duty is plain. We ought to apply that power to the prevention of all offences. If hanging will rid the world of petty larceny, we should hang for petty larceny, and have done with it. If hanging will stop apple-stealing, we have a specific for making orchards safe through all coming time. Why not? Because the punishment is disproportionate to the offence? But that answer supposes proportionate infliction, and not prevention, to be the object of punishment. It reverts to the vindictive theory. We are brought back to the discarded doctrine of retaliation. On any other system, legislation has nothing to do with proportion between punishment and crime. In fact, no graduated scale can be framed of so much infliction for so much guilt. We have no common measure. Prevention is our business; the highest preventive power we can obtain; which some affirm, and we deny, to be hanging. Yet no one ventures to recommend the universal applciation of this specific. Till they do, we take leave to question their faith in its efficacy. The prevention which would fail for apple-stealing, cannot be infallible for rape and murder.
          The palmary [sic] argument of recent opponents to abolition is derived from the crime of rape. This offence ceased to be capital in 1841. Since that change, the number of committals has rather more than doubled. The increase is unhesitatingly attributed to the change; and we are admonished to mark this decisive testimony of experience to the preventive power of death-punishment, and the danger of its abolition.
          In a former article we remarked on the unfairness of any such argument from a partial abolution. By the change in 1841 the law declared, impliedly, that rape was no longer to be classed with the worst sort of offences; that its heinousness had been over-estimated. For any evil results which may ensue from the legal sanction of that cruel fallacy, the advocates of an universal abolition ought not to be held responsible. It is not their experiment. Let the partial abolitionists, the champions of moderate hanging, see to it.
          In the tables (compiled by Mr. REDGRAVE) from which the above result is obtained, and where the comparison of crime is made during two cycles of five years each (1835–1839 and 1840–1844), may be found the statistics of another offence of the most disgusting kind. [i.e. sodomy] This was, and continues to be, capital. Yet it increased in the last five years exactly in the same proportion as rape. How is this? We know of no assignable reason which does not invalidate the inference from the increase of the other offence. The doubled committals had nothing to do with the abolition of death punishments in the one case, for its was not abolished; nay, instead of that, the capital sentences were more than doubled. That the doubled committals had to do with it in the other case, requires more proof than the mere coincidence.
          We will look a little further into these statistics. The crime of rape, it is said, increased 102 per cent. The fact is overlooked, or suppressed, that assaults with intent, &c., increased less than 6 per cent., and the aggregate of committals for the completed crime, and for assaults with intent, taken together, only increased 26 per cent. Now, 26 per cent. is precisely the average increase of crime generally in the last five years (to 1844 inclusive), as compared with the previous five years. In committals for the criminal assault merely, there has therefore been a large comparative diminution; in committals for the completed crime a large increase; and in the aggregate of the two, a result identical with that obtained from the tables as to crime universally.
          The difference between the assault and the completed offence is accidental. The culprit always purposes the completion. He is beyond the force of punishment, as prevention. The number of such culprits has not increased more than that of all other culprits. There is no surpplus, to be accounted for by the abolition of hanging. There is the general progress of cirme to be explained, precisely as much of it in this instance as in the totality; and not a fraction more. That there is not more, justifies the change made in 1841, and refutes the hostile inference; though made, as we have already observed, under the unpropitious and objectionable form of a partial abrogation.
          Mr. REDGRAVES'S tables for 1845 have just appeared. The general decrease of crime last year was rather more than eight per cent. In the particular offence referred to, the decrease is 29 per cent. Such was the progress of facts at the very time that legal reasoners were demanding the restoration of the gibbet to correct a failing experiment.
          There remains for explanation the ract that, while the crime, taken generally, shows only the common progress of crime, the proportion between the committals for the attempt, and for the completed offence, varies so remarkably. We perceive but one solution. More culprits comparatively are sent to trial for the major offence, and fewer comparatively for the minor, because the major offence is no longer punished with death. Only three were formerly committed for the major offence, where four are now, out of the same number of offenders. There has been a transference of committals from the minor to the major offence of twenty-five per cent. The highest punishment of the atrocity has been more readily invoked and more frequently inflicted. The result has been that the totality of this offence has been kept within the same bounds as crime in general, notwithstanding the abolution of death punishment; while, in the nameless offence to which we adverted, death punishment continues, and crimes and capital sentences have more than doubled together. The case of the abolutionist is firmly sustained by the very instance selected to serve for its complete demolition. (London Daily News)

Wednesday 10 June 1846

No. 354. CAPITAL CRIME. – An analysis of the crimes capital, in 1830, for which the punishment of death has been abolished by statute, or for which it has not been inflicted during the last five years; giving the number of persons committed and executed for each kind of offence during the five years preceding the last execution, and the committals during the five years immediately succeeding.
          Unnatural Crimes – During the five years ending with an execution. – Committed: 105; Executed: 11 – During the five years immediately following: Committed: 118. (London Daily News)

Thursday 11 June 1846

The practice prevalent in this county, of detaining lunatics in Workhouses, or placing them out with other paupers, at a small weekly stipend, on the score of economy, thereby depriving them of proper medical treatment and care, is highly objectionable; and, since the passing of a recent Act of Parliament, illegal. . . . The Commissioners in their report on this class have observed, “Idiots, however, are by no means to be considered as persons always harmless. Two male idiots of the age of 18 were lately found in an Union Workhouse committing an unnatural offence. They were taken before a Magistrate, and were by him sent back to the workhouse as irresponsible persons. Such individuals should be deemed dangerous, not only in the ordinary, but in the moral acceptation of the term, and ought not, we think, to have been sent back to the workhouse. In the Leicester Workhouse we found in October a dangerous female idiot, who had knocked out the teeth of a child.” Your Committee also remark that there are constantly instances of idiots exhibiting the most depraved as well as the most dangerous propensities. (Brighton Gazette)

Friday 4 June 1847

[From a debate in Parliament:] Sir WILLIAM MOLESWORTH: There are two questions for the consideration of the house: first, whether transportation should or should not be discontinued; secondly, supposing it should be discontinued, what punishment should be substituted in its stead? With regard to the pripriety of discontinuing transportation I entertain the srongest opinion. For I undertake to prove that in every shape and under every form transportation is a bad punishment. I undertake to prove this position with regard to the assignment system, which was the original punishment of our penal colonies; with regard to the road parties and chain gangs of New South Wales; with regard to the probation system of Van Diemen's Land, and with regard to the penal system of Norfolk Island and Port Arthur – I will show that all attempts to improve transportation have been signal failures, and that it cannot be rendered a good punishment. therefore, it appears to me that the government are acting with wisdom and judgment in determining at once to abolish transportation, and to substitute in its stead a scheme of punishment more in accordance with the feelings and knowledge of the age. The honourable member entered into a minute examination of the nature and the results of our existing system of punishment by transportation; and brought forward numerous proofs of the atrocities and crimes which it had fostered amongst the gangs of convicts in Van Diemen's Land and elsewhere. With regard to this subject, he observed, I must refer to a letter from Mr. Pitcairn, a respectable solicitor in Van Diemen's Land, and another from the Rev. Dr. Fry, chaplain ot St. George's church, Hobart Town. Both letters describe the hideous moral consequences of the assemblage of convicts in gangs in the colony. Dr. Fry says, addressing the Secretary of State for the colonies:– "Having had occasion about six months since to visit the large convict station of the coal mines, and the adjacent stations, I was struck with horror at the representations of the chaplain, and other accounts, which I believe the bishop will submit to you. It is fearful to think of the scenes represented, and they are such as cannot be written. The aspect of the men indicated the dreadful habit to which they were addicted, and inquiry was met with silent reluctance, as if the condition of the men was too dreadful to speak of." He goes on to say, "Communications with various persons, religious instructors, and probation men themselves, confirm me in the conviction of the great prevalence of the evil, and the contagion and corruption among the men, which I am convinced exists even in the Penitentiary in Hobart Town. When the men are locked in (to use a phrase common and undisputed), the place is worse than hell." He adds, "I am convinced that in this country no care or vigilance in the government will prevent abuses and calamitous negligence in some or other of the gangs. The stations are remote and unobserved. It is the interest of the superintendents to conceal and overlook shocking offences. In most cases the officers of the gangs will be more anxious to have money, in order to leave so revolting a service, or to live without trouble, than to detect crime, and to watch the secret and private habits of the men." Mr. Pitcairn stated in his letter that two men in one of the gangs had lately been hung for a rape on a convict boy – that a particular disease had been caused among the convicts by the crimes alluded to by Mr. Fry, and that a colonial surgeon, Dr. Motherwell, now in this country, had had three hundred cases of it under his care. Sir E. Wilmot, in consequence of these statements caused a surgical examination to be made of the convicts, and it was found that at the station of the coal mines, where about 550 convicts were assembled, no less than 20 men were suffering from disease produced by unnatural crime. At Impression Bay there were likewise 20 cases of similar disease among 450 convicts. At the other stations the amount of disease was less, but at the majority of the stations the surgeons reported that there were appearances of unnatural offences having been committed. Unnatural crimes seem likewise to have prevailed among the female convicts. The despatch upon his subject from Sir Eardley Wilmot to Lord Stanley has not been published. But Mr. Gladstone refers to it in his last public despatch to Sir Eardley Wilmot, and expresses his surprise at the negligence of that officer, because, after "the most horrible and revolting accounts of the state of morals among a portion of the female convicts" (which Sir Eardley Wilmot had transmitted to Lord Stanley), "he (Sir Eardley Wilmot) had never followed up that statement, either by a detail of remedial measures, or by tendering suggestions of that character for the consideration ofher Majesty's government." In confirmation of these statements I may refer to an address to the Bishop of Tasmania, which has lately been laid before the house. That address is signed by the archdeacon and twenty-four clergymen of Van Diemen's Land, a very large portion of the clergy of that diocese. They state tht they are convinced that in the gangs of convicts throughout the diocese unnatural crimes are committed to a dreadful extent, and they earnestly implore that the probation system may be discontinued. I will say no more on this subject. I predicted that any system similar to that of the probation gangs would prove a failure in the penal colonies. That system has failed, and for the following reasons. It was impossible to obtain efficient superintendence over such gangs; it was impracticable to provide proper employment for them; there was no sufficient demand for the labour of the pass-holder and ticket-of-leave-men; the labour market was overstocked; the industrious, respectable, and free emigrated; the convict population acquired the preponderance, congregated together in gangs, all of one sex, without proper separation and superintendence, the consequences were such as I need not repeat. Transportation to Van Diemen's Land is now discontinued, and I trust to God, for ever. . . . (Evening Chronicle)

Tuesday 21 December 1847

W. Jury, a constable of Shipbourne, appeared to answer the complaint of the father of a prisoner who is now in gaol under sentence of two years' imprisonment for an unnatural crime. The charge was for taking 8s. 6d. for a pair of handcuffs, and detaining a round frock. It appeared that the prisoner's round frock was in such a filthy state that it was pulled off and left in the stable, and that Jury never had it at all; that the father gave Jury 8s. 6d. for the handcuiffs, that he should charge the son with stealing them, and Jury bought another pair with the money. The Bench dismissed the case, but blamed Jury for taking the 8s. 6d. (South Eastern Gazette)

Saturday 23 June 1849

OFFENCES AGAINST THE PERSON. – The punishments for offences of this heinous nature have been less and more lately diminished than any other class of crimes. By the statute law, murder, and attempts to murder where life is endangered, and unnatural offences are still liable to the extreme penalty of death: in rape, and attempts to murder where life is not endangered, capital punishment has been abolished. The latter took place in 1837, the former in 1841. But though still capable of being exacted, the punishment of death has been of late years reserved for heinous offences of murder alone. Since 1839, out of a yearly average of sixtyi-four capital sentences, the annual average of executions has not exceeded eleven. Practically speaking, capital punishment is as much repealed for attempts to murder of a grave kind and unnatural offences, as if, in so many words erased from the Statute Book. (Bucks Herald)

Friday 6 July 1849

The CHAIRMAN, in his charge to the Grand Jury, . . . recommended the jury, in the case of James Taylor, who was charged with an unnatural crime, if they should conceive the evidence not to be sufficient to convince a petit jury, at once to ignore the bill, since such inquiries in open court were calculated to vitiate the morals of many who might hear them. (Hull Advertiser)

Friday 10 August 1849

Alfred Wood was indicted for attempting to commit an unnatural crime. Verdict, Not Guilty.
          The Grand Jury on this and the former assizes have complained to the court, that in cases of a certain description such as were tried to day, that the Clerk of the Crown had prepared bills for a misdemeanour as well as a felony. In the cases tried to day, one of the prisoners was caught for the misdemenour after escaping the felony; and another escaped altogether, he not being indicted for the misdemeanour.
          The JUDGE said that he hoped some of the Grand Jury were present in order that they might see the correctness of the practice of the Clerk of the Crown.
          We observed Captain De Hollyngworthe present: and we have no doubt that on another occasion, he will inform the Grand Jury of the remark he heard in Court. (Chester Chronicle)

SOURCE: Various newspapers, dates as given.

CITATION: If you cite this Web page, please use the following citation:
Rictor Norton (Ed.), "Legal Issues and Practices, 1840s", Homosexuality in Nineteenth-Century England: A Sourcebook, 6 October 2016 <>.

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