The Georgian Underworld by Rictor Norton

A Study of Criminal Subcultures in Eighteenth-Century England by Rictor Norton


2    Rising Crime Rates & The 'Bloody Code'


Copyright Rictor Norton. All rights reserved. Reproduction for sale or profit prohibited. This essay may not be reprinted or redistributed without the permission of the author.

Theft increased dramatically during the eighteenth century, mainly because there were more goods to steal and more retail shops to steal from. Goods were displayed at the front of a store, often near open windows, so stealing from shops became more frequent, whereas stealing from dwelling houses did not correspondingly rise. As the proliferation of goods – whether manufactured at home or imported from abroad – became more visible, so the temptation to steal them grew. Henry Fielding claimed this in his important pamphlet An Enquiry into the Causes of the late Increase of Robbers, &c. With some Proposals for Remedying this Growing Evil (1751): 'nothing hath wrought such an alteration in this order of people [i.e. the lower orders], as the introduction of trade. This hath indeed given a new face to the whole nation, hath in a great measure subverted the former state of affairs, and hath almost totally changed the manners, customs, and habits of the people, more especially of the lower sort. The narrowness of their fortune is changed into wealth; the simplicity of their manners into craft; their frugality into luxury; their humility into pride, and their subjection into equality.' Unfortunately Fielding's moralistic comments on luxury and temptation are enough to drive any modern reader into the arms of Marxism.

Nevertheless, the counter-claim that most thieves were driven to steal 'from necessity' is not borne out by the trial records. Some might argue that this is because it was not deemed worthwhile prosecuting people who stole very small quantities of goods. But servants who stole small numbers of items from their masters could assemble substantial loot over time. Ann Goldbourn was suspected of stealing a waistcoat belonging to her master, who was a haberdasher. He went to her room to investigate, and forced open her private trunk, in which he found twelve yards of silk, fifty-nine yards of paduafou ribbon, seven yards of taffeta, thirty-one yards of satin ribbon, fourteen yards of figured ribbon, eleven yards of narrow ditto, twenty-five yards of narrow shaded ribbon, four yards of silk lace, one yard of black gauze, six yards of black silk remnants, one yard of black satin, three yards of figured silk, two and a half yards of cheque gauze, four pairs of scarlet garters, fourteen ounces of sewing silk, one yard of Mechlin lace, sixty-nine yards of shalloon, and thirty-six yards of black ribbon. Since these goods had been pilfered over a period of time, and there was no proof that any single act of pilfering involved goods worth more than forty shillings' value, she was merely branded rather than transported.

With regard to more serious robbery, people driven to crime by necessity would not have had enough money to buy pistols and horses in the first place. The 'necessitous' criminal was seldom found among smugglers, whose horses represented a major investment, or among counterfeiters, who also had to invest in the tools of their trade. Trade in stolen goods was big business, big enough to support well-organized fencing networks and hundreds of pawnbroking shops. Greed rather than poverty is the major motivating force behind Georgian crime. There is no simple one-to-one relation between dearth and crime-due-to-necessity. There may even be some truth in the stereotype that the poverty of the working classes was due to their own fondness for 'idleness'. When food became abundant and cheap, the poor simply worked less, just enough to satisfy the modest level of their basic needs. A statistical study has shown, for example, that when the price of bread went down in the years 1700, 1718, 1719, 1723, 1738, 1739 and 1744, the volume of export trade declined because trading companies found it difficult to get labour. Fielding and many eighteenth-century theorists held the cruel view that the wages paid to the working class were too high. If poor people earned more than they needed for basic necessities, they would simply become idle in their spare time, and were more likely to engage in criminal pastimes.

Rising Crime Rates

Although official criminal statistics were not kept during the eighteenth century, it is nevertheless possible to document the existence of crime waves by measuring the frequency of newspaper reports, and the numbers of prosecutions and convictions. One striking fact about crime waves is that they occurred after the demobilization of soldiers and especially sailors following a war. The link between sailors and crime was recognized in the old proverb that 'The sea and the gallows refuse nobody.' The link between crime and demobilization reflects the increased numbers of young men with no employment (and waiting for arrears in pay), especially young men newly experienced – and skilled – in violence. Contemporaries were fully aware of the link between crime and the social dislocation of war. A public petition in January 1751 argued that demobilized sailors, 'driven into despair through mere necessity', had 'run headlong into malpractice, purely to keep themselves from starving', and were now making 'their exits at the gallows'. A large crime wave followed the end of the War of the Austrian Succession which was concluded by the Treaty of Aix-la-Chapelle in October 1748. Gaols became overcrowded and the courts could not keep up with the prosecutions. Cases of theft dramatically increased in Surrey, and in Southwark the Quarter Sessions justices had to hold four additional Sessions a year to deal specifically with 'petty larceny'. Going from an average of perhaps a dozen cases a year before the end of the war, from 1749 through 1753 the courts had to deal with an average of seventy cases a year. Private diaries recorded the increase in thefts and the danger of travelling, and newspapers reported numerous highway robberies. The increase in theft was due not so much to the actions of individuals, but to armed gangs. Presumably such men were exploiting some of their former training in military manoeuvres and their skill in using pistols and swords. Street crime became a kind of military campaign: 'These villains now go in bodies, armed in such a manner, that our Watchmen, who are generally of the superannuated sort, absolutely declare, they dare not oppose them' (Whitehall Evening Post, 14-17 January 1749).

There was not simply a rise in crime, but a rise in violent crime. Contemporary newspapers very frequently reported that sailors were involved in robberies and general affray and in simply beating people up in the streets. A study has shown that 60 per cent of the robberies reported in the Whitehall Evening Post were accompanied by violence before the peace preliminaries were signed in April 1748, and that after this date 80 per cent of the robberies reported were accompanied by violence, and this figure remained at around 75 per cent through the middle of 1751. More than 70,000 men were discharged in 1749 – and more than half of the men hanged in that year were former servicemen. The King warned of a breakdown of public safety in a speech in January 1751, and a committee in the House of Commons was set up to consider measures 'for enforcing the execution of the laws and for suppressing . . . outrages and violences'. Some modern historians describe this crime wave as a massive increase in 'crimes against property', but contemporaries were much more concerned about 'outrages and violences'. Henry Fielding in his 1751 Enquiry was similarly fearful that 'the streets of this town and the roads leading to it will shortly be impassable without the utmost hazard; nor are we threatened with seeing less dangerous gangs of rogues among us, than those which the Italians call Banditti.' These hazards and dangers to personal safety should not be buried in the abstraction 'crimes against property'. The committee made some thirty resolutions to deal with the problem, but few were passed into legislation, as there was opposition from the House of Lords, and the crime wave had significantly declined by 1753. But it picked up again by 1763, when the Gentleman's Magazine reported that 'Robberies, frauds, and thieveries, were never more practiced than at present; most of them committed by Irish disbanded soldiers, or discharged seamen.'

An alternative way to interpret the crime waves is to see periods of war as a time when crime decreased, because unemployed (or 'idle') young men were being swept off the streets and sent off to war. There was quite a dramatic fall in crime from 1739, when the war against Spain began, and this continued to fall as the European war expanded. The steady decline in prosecutions is almost certainly due to the recruitment of young men into the armed forces and, for those not recruited, the provision of employment in the shipbuilding industries, and in the industries that provisioned and uniformed the army and navy. The end of the war brought a rapid reversal, where these men were thrown back onto the labour market, but had fewer prospects for employment as the wartime industries ceased. It also seems likely that large numbers of young men arrested for theft during war-time were given the opportunity to volunteer for service in His Majesty's navy rather than face indictment and prosecution, and that during peace-time there was less opportunity for offering this eighteenth-century equivalent to community service.

Rural crime often followed a bad harvest. The failure of the harvest in 1740 and 1741, resulting in a shortage of work plus a high price for food, provoked a significant rise in theft in rural parishes as farming labourers found themselves barely able to survive. The return of a bountiful harvest after 1741 was matched by a decline in rural crime. During most periods 'crime waves' were as real as the rural deprivation and urban demobilization that produced them: none of these were figments in the imaginations of newspaper editors or Members of Parliament. The crime rate soared once again following the Treaty of Paris which concluded the war with France in 1763, when a horde of (unemployed) veterans returned to the streets, prompting Horace Walpole to remark 'We swarm with highwaymen who have been heroes.' This crime wave subsided after about eighteen months, as these men were reabsorbed into the labour market. Another crime wave occurred in the early 1780s, perhaps partly caused by the release of criminals when Newgate gaol and the Fleet, New and King's Bench prisons were burned down in the Gordon Riots of 1780, and partly by the return of disgruntled soldiers following the surrender of Yorktown in the American Colonies in 1781. In October 1782 Horace Walpole wrote from Strawberry Hill in Twickenham: 'I have lived here above thirty years and used to go everywhere round at all hours of the night without any precaution. I cannot now stir a mile from my own house after sunset without one or two servants with blunderbusses.'

Street robbery involving violence or the threat of violence – that is, robbery 'on the highway' other than picking pockets – seems to have been especially frequent in late summer and early autumn when days were long, even though contemporaries regarded it as crime more typical of the winter months when days were short. According to reports from The Weekly Journal; or, British Gazetteer in 1728, for example, during the first week of August, two ladies going in a chariot from Beckingham to Bromley were robbed by a single highwayman; Rev. Mr Uvedale's wife and another gentlewoman were robbed by three highwaymen while coming over the Chase to Enfield in a coach; two footpads robbed several persons near Pancras Lane, including three coming in a coach from Highgate; Mr Lewis Hays of Wanstead, with his lady, were robbed in their chariot in Epping Forest, near Woodford Road, by one highwayman (while another kept a lookout under a bush); a gentleman's servant, coming from Islington over the Fields, was stopped by two footpads, one of whom brandished a knife; a coach-maker was pursued by a highwayman in Windsor Forest, and fired upon; a tailor was set upon by three street robbers in Little Drury Lane, one of them stopping his mouth to prevent his calling the watch. In the second week of August, a painter was set upon near the new church in the Strand by two street robbers, who clapped a pistol each side his head. In the third week of August, two gentlewomen in a hackney coach were robbed between the Pindar of Wakefield and the end of Gray's Inn Lane; a man was set upon by footpads at North End near Hampstead, who stripped him of his clothes and robbed him of five shillings; three men presented a pistol to the breast of a gentleman in Fleet Street and demanded his money; a gentleman passing in a coach through Fleet Street was attacked by a gang of four or five rogues, who made off down Water Lane with 50; a man was knocked down by two footpads near the Old Spa in Islington Fields, who took his hat, wig and money; a school-master was attacked by four street robbers while returning to his home in Wardour Street, Soho; two gentlemen in a hackney coach going through Queen Street, Holborn, were robbed by a gang of four men; a robber forced his way into a hackney coach in Hosier Lane, Smithfield, at which the passenger jumped out and was fired at, but escaped; a gentleman and his lady were robbed by a single highwayman while their coach was crossing Harrow on the Hill; and a gentleman in a hackney coach was robbed at Hyde Park Corner, Knightsbridge. In the last week of August the stage-coach from Hitchin, Herts, containing one man and five women, was held up at Brown's Well near Highgate by a single highwayman (who dismounted and fled into the woods when two men from his previous robbery a short time before came up in hot pursuit); three footpads robbed, first, a gentleman on horseback and, second, a chariot, near the turnpike on Tottenham Road; a man was robbed by a rogue near Stationer's Hall, who knocked him down and left him speechless; and a gentleman was set upon by four street-robbers at the corner of Bowling Alley, White Cross Street, who broke his head in two places before others came to his assistance. The newspaper reported 30 robberies during September, including a publican robbed while riding in his chaise on the road from Hampstead to Highgate; two men in a chaise on the Hammersmith–Kingston road; a ship's captain while his coach ascended Highgate Hill; a tradesman knocked down in the Mall, St James's Park; and a gentlewoman and her footman attacked and robbed by three highwaymen while going to Highgate (the footman fled, but returned to his post after his mistress was ransacked); a hackney coachman who was stopped by three footpads in Old Street, and when they found no passenger inside the coach, they robbed the coachman of his day's takings and stripped him naked; a man bringing rabbits to London on horseback who was robbed near Shoreditch Church by five footpads; and there were further robberies near Hampstead, Holborn, Lincoln's Inn Fields, the Strand, Hyde Park Corner, Ludgate Hill, Thames Street near Coldharbour, the Royal Exchange, in Kensington and Knightsbridge and even near Buckingham House. During the last week of September, two footpads stopped 'an old mumper' on the footpath between Kentish Town and Pancras, and took what little money she had.

Archenholz was incorrect when he claimed in the 1770s that 'If one does not travel either very early or very late, there is no fear of being attacked even in the most suspicious places.' These robberies of August and September 1728 were usually committed during the early evening, or very early in the morning, but also occurred even mid-afternoon. Fourteen of the incidents occurred on a Sunday. Hampstead Heath and Highgate Hill were the most dangerous places, together with other unbuilt-up areas such as Lincoln's Inn Fields and St Pancras fields, but not even the fashionable West End was safe. The editors of the paper reminded their readers, in response to the 'frequent robberies of late', that the Royal Proclamation of 29 February 1728, promising a reward of  100 for anyone guilty of robbery with force or violence within five miles of London and Westminster, was still in force.

Defoe in 1726 in his Lives of Six Notorious Street-Robbers suggested that many robberies were the fictions of journalists: 'On a sudden we found street-robberies became the common practice, conversation was full of the variety of them, the newspapers had them every day, and sometimes more than were ever committed: and those that were committed were set off by the invention of the writers, with so many particulars, and so many more than were ever heard of by the persons robbed, that made the facts be matter of entertainment, and either pleasant or formidable, as the authors thought fit, and perhaps, sometimes, made formal robberies, in nubibus, to furnish out amusements for their readers.' This passage has been seized upon by modern historians who believe that the perception of crime seldom matches the reality of crime. But Defoe himself would not have fully subscribed to that view, for his passage immediately continues: 'But be that as it will, the real facts were innumerable, and the real robberies actually committed so many, and carried on with such desperate boldness, and ofttimes with blood, that it became unsafe to walk the streets late at night, or within the night or evenings, if the nights were dark, and people were afraid to go about their business' (my italics).

Some historians have suggested that the newspapers were engaged in scaremongering. The St James's Chronicle in November 1784 humorously suggested that 'If robbers continue to increase, as they have done for some time past, the number of those who rob will exceed that of the robbed.' If such reports were limited to relatively short periods, particularly if they coincided with elections or morals campaigns, it might be conceivable that newspapers stirred up rather than reflected concern about crime. But I see no evidence that panic about crime was systematically orchestrated by people in power in order to bring in laws to oppress the labouring classes. Reports about crime occurred quite regularly throughout the century, across newspapers representing all political persuasions, from both those that supported and those that attacked the government. It is not at all likely that the editor of the Weekly Journal fabricated these incidents in an effort to raise fear among the public. In most of the cases mentioned in the preceding paragraphs, the full names and places of residence of the victims are given, a practice that could not have been followed month after month, year after year, if such names and reports were fictitious. Another argument against the charge of baseless scaremongering is the frequency with which stolen goods were advertised in the newspapers. There is overwhelming evidence that these advertisements were not fictitious, but were placed by people whose goods were stolen. One of the main functions of the Daily Advertiser, a paper that is frequently mentioned in trial records, was to convey information about stolen goods. There were innumerable occasions when a pawnbroker appeared at the Old Bailey and said that, for example, when a young lad brought in a watch, he suspected it was stolen, and he scanned the newspapers for the advertisements and discovered the owner, then reported the crime and the law took its course. Justice Fielding regularly urged victims to place such advertisements in the Public Advertiser, and paid for many of them himself. For example, Fielding placed an advertisement in the Public Advertiser for 30 January 1764 offering a 5 reward for information leading to the arrest of Katherine Murray, an accessory to Scampy the Jew and his gang, and giving a full physical description of her appearance. Throughout January 1765, issues of the Public Advertiser carried a top-of-page banner advertisement from Fielding praising the role of the newspaper in detecting robberies through its advertisements and giving public notice that henceforth all informations passed to his Bow Street office would be placed in the newspaper, and he urged pawnbrokers, jewellers, silversmiths, stable-keepers and buyers of second-hand clothes to consult its pages regularly. The symbiotic relationship between Justice Fielding and the Public Advertiser resulted in an increase in the reporting of crime, but the crimes that were reported were nevertheless genuine and not the fabrications of a scare-monger. Individual leaflets advertising stolen goods were also printed, often in batches of 800–1000 copies, and distributed in the neighbourhood of the crime. If large amounts of money and promissory notes were stolen, such leaflets would sometimes be distributed by the Post Office throughout England and Ireland. Since these advertisements about stolen goods genuinely reflect the reality of crime, it would be odd indeed if newspaper reports about crime did not also reflect this reality. It is difficult to take seriously the suggestion of a modern historian that the perception that crime rose after demobilization following wars is due to the fact that in times of peace newspapers found themselves with space to fill because of a decline in war news, which they replaced with exciting crime stories. Since early eighteenth-century newspapers were usually only four pages long, they never had any difficulty in filling their limited number of column inches. Eighteenth-century newspapers bore little resemblance to the tabloid press of today: people bought these newspapers to read the shipping news, not to read about sex and crime. The Grub-Street Journal is the only newspaper that reported crime in a highly colourful way, often accompanied by wry remarks or innuendo, but the incidents that it reported were garnered from more matter-of-fact reports in the more restrained press.

Early in October 1728 the Weekly Journal published a proposal to the Lord Mayor and Court of Alderman for the prevention of street robberies. It complained that 'our streets are so poorly watch'd; the watchmen for the most part, being decrepid, superannuated wretches, with one foot in the grave, and the t'other ready to follow; so feeble, that a puff of breath can blow 'em down.' They proposed that the watch should consist of able-bodied men and trebled in number to one watchman for every 40 houses, elected and paid by the householders themselves, at 20 shillings per annum. Householders currently paid about 2s. 6d. a quarter to the watch, for a beat that covered about half a mile. They also proposed better street lighting, and placing watchmen at each turnpike house or toll station. It is not surprising that in mid-October the gentry and principal inhabitants of the 'villages' beyond the limits of the City and Westminster were planning to 'associate' in order to take measures to suppress robbers, and to offer additional rewards. But even in the 1770s, watchmen were paid only 6d. or 9d. a night. There were complaints that watchmen were never around when you needed them, because instead of looking out for thieves in their area, they were all at the Fleet Market taking up vagrants, for whom they received two shillings apiece.

Archenholz who visited London in the 1770s wrongly claimed that 'The English have not a single word in their whole language, to express what we term the police.' In fact John Fielding published a pamphlet in 1758 titled An Account of the Origin and Effect of the Police. Nevertheless Archenholz acknowledged that 'if one however concludes from thence, that the thing itself does not exist among them, he will be grossly deceived.' Archenholz felt that London was as well regulated as it could be in view of its enormous size, and in view of the English hatred of restraints on individual liberty. He was impressed by how safe the city was. He found that not only was the city very well lit – there were more crystal globes attached to iron supports in Oxford Street than in the whole of Paris – but even the main roads seven or eight miles around town were lined with street lamps. Along the highways 'little wooden boxes provided with bells, and containing watchmen armed with musquets, are also posted at every hundred paces'. In London itself there were now 2,000 watchmen. However, it is impossible to determine if the overall level of crime rose or fell. Every ten or twelve years there was another crime wave, and many residents of London did not feel it was safe to travel until very late in the century. Highwaymen were virtually eliminated by the early nineteenth century, not by better policing methods, but by 'structural' factors of urbanization and industrialization: in addition to street lighting just mentioned, heathlands shrank as they were built over, turnpikes were improved, new banking legislation made carrying large sums of money unnecessary, and rigorous licensing of public houses effectively closed down the more disorderly ones. The gradual gentrification of the city probably also had an effect. For example, in October 1772, in order to put a stop to prostitution near St James's Palace, rubbish was removed from nearby Stable-Yard, 'the present vulgar name will be changed for a more genteel one', and street lighting would be set up in the piazzas.

'The Bloody Code'

The term 'the Bloody Code' refers to the fact that from 1688 through 1815 an increasing number of capital felonies (i.e. crimes punishable by death) were added to the statutory code. From about 50 capital felonies in 1688, the figure rose to about 160 by 1765, and rose further to about 225 by 1815. The effects of the law were described as 'bloody' during a reform campaign of 1778, but it was not until the 1820s that radical reformers coined the phrase 'the Bloody Code' as a powerful rhetorical tool in their campaign against a criminal law system that they believed to favour aristocratic privilege. Many historians claim that this increase reflects efforts by the landed gentry to protect new forms of property. Other historians point out, however, that there was merely a technical, rather than substantive, increase in the number of capital felonies: most of the crimes punished by death already existed under common law, and the 'bloody code' merely incorporated them explicitly onto the statute books.

Almost all criminal legislation in England was introduced piecemeal by private Members' Bills: no state government plan coordinated it, and it is impossible to find any coherent overall reasons – such as fear of uprisings – behind it. The increase in nearly every form of statutory legislation simply reflects the fact that Parliament met more frequently and more regularly after 1689. In any case, nearly all of the statutory felonies covering specific types of theft had previously been encompassed by the common-law capital felony of theft pure and simple. Old crimes were given new names. Arson for example was already a common law felony, and stealing from shipwrecks was already a common law larceny. But it seems that certain legislators or small pressure groups in Parliament promoted Acts to make these statutory felonies, perhaps because they personally had been affected by arson or theft from shipwrecks, and they wanted to give clearer focus to these crimes. But the felonies themselves were not new.

More than 95 per cent of capital prosecutions in the late eighteenth century were based on pre-1742 statutes, most of which went back to Tudor times, including horse theft and the less serious crime of picking pockets. Robbery, burglary and housebreaking – the crimes that made up the bulk of prosecutions – had been punishable by death since the sixteenth century, not because they were crimes against property but for the good reason that they involved the threat of violence and made people fearful for their lives. Shoplifting, perhaps the most common crime not involving threat of violence, was punishable by death since 1699. The overwhelming practice was for judges to sentence the death penalty for pre-1688 felonies such as murder and highway robbery, and to sentence transportation for felonies put on the statute books after 1688. Contrary to modern misperceptions, the general pattern was that the person charged with stealing a single linen handkerchief was acquitted, while the person charged with stealing 36 pounds of cocoa (i.e. the professional thief) was convicted. The proverbial 'nine-year-old boy hanged for stealing a loaf of bread' is virtually nonexistent. In January 1758 a woman was prosecuted for receiving stolen goods from a nine-year-old boy accused of shoplifting, but when the court learned the boy was only nine years old the judge declared that 'As the boy was not capable of distinguishing between good and evil , so no felony, and if no felony no accessary, wherefore they were both acquitted.' A far more typical case of juvenile crime was that of Thomas Knight, who was hanged on 8 February 1721 for stealing, among other things, 29 snuff boxes, 16 toothpick cases, 30 rings, 12 pairs of gold buttons, 8 gold chains, 8 tweezer cases, 17 gold and diamond rings, to the value of 666l. 5s., from the shop of William Deards.

Thieves who operated as part of an organized gang were more severely punished than the opportunistic lone operator. Nor did the increased numbers of statutory felonies result in increased numbers of trials or convictions. Ironically the increased clarity necessary to get a crime onto the statute book often resulted in fewer convictions. It had been far more effective to prosecute under the common law offence of 'theft', than under the new statutory 'grand larceny' of stealing linen. Technicalities in the written-down, statutory, law were exploited to such an extent that more criminals escaped scot-free under the 'Bloody Code' than under the unwritten common law. Partly because legislators were becoming more professional and wanted to tidy things up, every common-law felony was replaced by a statutory felony, which was often subdivided into narrowly-defined statutory felonies. The fact that statutory crimes could be counted, whereas common law crimes could not, resulted in a largely chimerical 'increase' in the number of crimes. The new crime of forgery was one of the very few genuinely new crimes, resulting from the increasing importance of a paper-money economy, but the large category of which forgery was just a part, and which included coining and counterfeiting, had always been considered a crime against the King. The Waltham Black Act of 1723 was notoriously applied to cover a wide range of offences not originally intended by the Act against poaching, but that case is unique rather than typical of the age. More importantly, the period of the 'Bloody Code' actually resulted in less spilling of blood than the period preceding it.

Capital convictions and executions steadily declined over the course of the eighteenth century. Although the code, potentially, was sanguinary enough to strike terror into the hearts of potential criminals, in actual practice it was largely merciful and lenient. The net effect of explicitly making more crimes punishable by death was to focus the minds of jurors upon the seriousness of their deliberations and the importance of proving crimes beyond the shadow of doubt. Even prosecutors and witnesses were less willing to press charges or testify when they realized they would be sending someone to the gallows for crimes that threatened only property rather than life. Both judge and juries were sometimes distressed that theft of a very small amount was a capital offence (i.e. requiring the death sentence), and they often either withheld a guilty verdict even when guilt was clearly established or arbitrarily withheld the death sentence. A not-untypical case involved Ann Flynn who in 1750 was indicted for stealing a shoulder of mutton from a butcher in Whitechapel. Flynn admitted the robbery but said that her husband had been ill and out of work for twelve weeks, and she was driven to this last extremity in order to feed her two infant children. The Recorder sentenced her to pay a fine of only one shilling, which was paid by the jury, and a shilling was then given to Ann Flynn by the prison officer. In a similar incident in 1763, John Cox was tried for stealing 6lb of sugar from the quays but the jury heard that he was in great distress, his wife and five children having small pox, and the jury not only recommended mercy, but took up a collection to relieve his unhappy family.

By the 1760s a third of those prosecuted for capital property offences were acquitted and another third were found guilty on the reduced charge of grand larceny (this was called a 'partial verdict'). The judges construed the laws very carefully and cautiously, and the juries regularly determined that the value of the goods stolen was only 10d. regardless of their obviously greater value, so as not to convict on a capital charge. And most of those who were sentenced to death were almost automatically pardoned by the King on condition that they transported themselves (to America up to 1776, thereafter to Australia) for a period of fourteen years. The standard practice under the 'Bloody Code' was the same as under the unwritten common law: in the large majority of cases (e.g. 87 per cent of cases in Surrey during 1736–53), only murderers and felons guilty of violent assault and robbery or repeated robbery were punished by death. For the rest – whatever may have been the intentions of the legislators – the judges, the juries and the King were all agreed that capital punishment should be rarely used. Though the public at large, and the newspapers, called for even greater severity of punishment to fight perceived crime waves, the judges and juries resisted public opinion and were in favour of clemency towards criminal defendants.

Although some historians claim that the criminal justice system was weighted against the criminal, the fact is that most criminals were justly convicted – and many who were acquitted were nevertheless guilty although the evidence was not sufficiently strong to reach a safe verdict. A large majority of criminals confessed to their crimes after their conviction. The suggestion that basically innocent people were overwhelmed by a criminal justice system prejudicial to the working class is ill-founded. Many criminals confessed to the Justice of the Peace to whom they were initially brought shortly after being arrested, at which time they sometimes offered 'to make it up'. At the subsequent trial they usually pleaded Not Guilty, because this gave them a chance of being acquitted, or of being convicted on a lesser charge. Their defences, if they offered any, in many cases are transparently false. Those who were capitally convicted seldom maintained their innocence to the end. They usually confessed after the trial that the conviction was just, and thieves and highwaymen usually confessed to a series of crimes for which they had not been tried. Although religious piety was not very high amongst many of the people who ended up in Newgate, apprehension of their impending death usually had a very sobering effect, and many felons seemed to believe that confession was necessary before they took their final communion from the Ordinary or Chaplain, so that they could be forgiven their sins. Some criminals waited until the very last minute, and confessed while they stood beneath the scaffold at Tyburn; in some cases this was because the awesomeness of the occasion prompted genuine repentance, though in some cases this confession was a form of braggadocio. A very typical example of confessions under the gallows took place on Sunday 10 July 1772, when six men were hanged at Tyburn, four for housebreaking and two for robbing the mail. According to the report in The Craftsman; or Say's Weekly Journal, 'They all acknowledged the justice of their sentence; the housebreakers in particular said, that they justly deserved death, having for some time past belonged to a gang of housebreakers and street-robbers; and attributed their unhappy fate to their connection with bad women.' (The bodies of the four housebreakers were delivered to their friends for interment, but the bodies of the two mail robbers were carried to be hung in chains near Finchley Common.)

Throughout the century, strict rules of evidence guaranteed that there were far more acquittals than convictions, and that miscarriages of justice were rare. The criminal justice system was generally biased in favour of the defendants, even though most of them belonged to the lower classes. Typically, most people arrested by constables never even went to trial; if a gambling den or disorderly house were raided, many would make their escape, and half of those arrested would be set free by the Justice of the Peace because identification and incriminating evidence were not sufficient to present them to a Grand Jury. The Grand Jury in its turn would dismiss half of the cases presented to them for being insufficient to support a true bill of indictment; and at the trials in the Old Bailey, convictions did not greatly exceed acquittals. For example, out of 74 persons indicted during the London and Middlesex Sessions for 24–27 July 1731, 43 were convicted, 30 were acquitted and 1 was declared lunatic. Of the 43 convicted, 8 were sentenced to death, 32 were transported and 3 were burnt in the hand. Seven of the 8 men sentenced to death committed highway robbery with assault, sometimes quite violent: John Davis was convicted on three charges of highway robbery, during one of which the victim was shot and died. For every set of felons capitally convicted at a single trial, another criminal went free, by virtue of giving King's evidence against his colleagues. Most of those found guilty of 'feloniously stealing' or 'privately stealing' goods were found guilty 'to the value of 10d.', which was below the level required for the mandatory death sentence. The juries regularly decided that the value of stolen goods was much lower than it was in reality, because they did not wish to send people to the gallows. At the sessions for 12–15 September 1759, 4 received sentence of death (1 for murder, 1 for attempted murder, 1 for highway robbery with violence, 1 for horse theft), 22 were transported, 3 were branded, 2 were whipped, 1 was imprisoned for two months, and 21 were acquitted. Throughout the eighteenth century, the acquittal rate was seldom less than 25 per cent, and often more than 50 per cent of those indicted. As the century progressed, the conviction rate fell well below 25 per cent:

Date Indictments Convictions
1782 668 98 (15%)
1783 818 170 (21%)
1784 1037   149 (14%)
1785 992 171 (17%)
1786 897 118 (13%)
1787 893 137 (15%)
1788 693 83 (12%)
1789 838 77   (9%)
1790 773 84 (11%)

A letter in the Morning Chronicle for 1 January 1773 complained that 'The numerous acquittals at the Old Bailey, on some days greater than the convictions, are truly alarming.' They observed, accurately I think, that 'Whenever any case admits of the least doubt, the Judge and Jury give it a cast in favour of life and liberty. When the Jury are commanded by their consciences, under the bond of an oath, to attaint a poor delinquent properly, by the summum jus, or rigour of the law, they never fail of recommending him to the Court for mercy, that heavenly prerogative, which in such cases, triumphs over justice.' It was proper that first-time offenders were treated with leniency, but far too often the writer observed 'hardened offenders, whose faces are known to the Bench, who have stood several trials, and with lenity obtained their acquittals, rather from the weakness of the prosecutor's proofs than the strength of their defence, whom we soon find again to crowd the gaols within a few days after their deliverance'.

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