The Accused and the Judiciary in the Eighteenth and Nineteenth Centuries
Ian P.H. Duffy
Professor of History
There are no comprehensive statistics of criminal defendants in England and Wales during the eighteenth and nineteenth centuries. National figures of committals on indictment begin in 1805, covering fifty crimes until 1834 when they become almost complete. Thus, for data about much of the period, we depend on qualitative evidence and the surviving records of the courts in each county. These show that the volume and composition of indictments were determined by various factors, particularly the legal definition of crime and the zeal of prosecutors and officials. It is clear that prosecution rates varied both between crimes and over time. As a result, criminal statistics offer a poor indication of the fluctuating level of crime. However, they shed very telling light on a society whose laws were enacted by the landed elite and applied by wealthy magistrates and juries of tradesmen. The pattern of indictments demonstrates starkly a determination to protect property and an assumption that it was endangered by the criminality of the lower orders. This was a self-fulfilling conviction since, by targeting the offenses of poor men and women, the law ensured that they comprised the criminal class. In contrast, the countless offenses of nobles, gentry, shopkeepers, and tradesmen went largely unpunished and white-collar criminals were more familiar to readers of Charles Dickens than to officials of the criminal courts.
Before the appointment of professional prosecutors in the late nineteenth century, criminal cases were initiated by complaints from private citizens, usually the victims, to the local county or borough magistrates. The latter were amateur members of the local elite except for professionals appointed in London and a few other cities from the mid-eighteenth century. Their role was to assess the allegations and, if proceedings seemed to be warranted, choose the appropriate course of action. Some cases could be treated summarily, the magistrate acting as both judge and jury. These initially involved trivial matters, such as drunkenness, soliciting, and vagrancy, but were extended in the nineteenth century to others, including some cases of petty larceny and assault. When the offense appeared to be more criminal, the magistrate drafted a bill of indictment for a grand jury which, if satisfied that there was a case to answer, sent it for trial by jury in one of two venues. Most such indictable offenses were heard in the quarter sessions, which were held before the county's magistrates four times a year. However, the most serious ones, including all capital offenses went to the assizes, grandiose affairs conducted several times a year by superior-court judges on circuit.
Despite the statistical shortcomings, most historians agree that indictments increased in the late eighteenth century and accelerated sharply from the 1810s to a peak in the 1840s before declining steadily until 1900. The reasons for this sequence are unclear. It probably reflects an increase in crime caused by population growth and hard times during industrialization before 1850 and a decrease because of the general prosperity afterwards. At the same time, it seems to have been influenced by non-economic factors, particularly a tendency for citizens and officials to prosecute more readily during the insecurity and unrest before 1850. Thus, the fluctuations in indictments give a somewhat exaggerated impression of the difference between the two periods.
Unlike the overall level of indictments, the types of crime involved appear to have remained roughly similar throughout the period. Regional studies note the preponderance of larceny cases in the eighteenth century, a pattern that became even more pronounced in the nineteenth. The official statistics record an average of about 56,000 cases annually between 1860 and 1900 and divide them into the following six categories.
1. non-violent crimes against property : 90% of all cases
2. violent crimes against property: 3.5%
3. offenses against the person: 4%
4. currency offenses and forgery: 1%
5. miscellaneous offenses, including riot, treason and sedition: 1%
6. malicious attacks on property such as arson & machine breaking: 0.5%
The first category – non-violent property crimes – includes embezzlement, fraud, and receiving but the vast majority of cases were for petty larceny. Typically, the plaintiff was an employer, shopkeeper or tradesman and the defendant a servant, shoplifter, or pick-pocket who had taken small amounts of food, fuel, clothing or money. In the mid-nineteenth century, sixty per cent of larceny charges were for less than five shillings. The number of such cases, and thus the overall level of indictments, underwent two characteristic short-term fluctuations that have provoked historical controversy. First, they increased sharply during economic crises. This suggests that many offences were driven by want but seems also have been influenced by a typical rise in the rate of prosecution in a time of uncertainty. Second, they tended to decline during wartime and rise again at the return to peace. This might indicate wartime recruitment of surplus labor and people who were prone to crime and their later disgorgement into the labor force at a time of post-war disruption. Alternatively, it could reflect the common practice of enlisting criminals in lieu of trial and, again, a post-war rise in the rate of prosecution.
The second category – violent property crimes – aroused enormous fear since it involved crimes that threatened citizens' physical and material well-being and consistently furnished the largest contingent of people sent to the gallows. Its most publicized offenses were committed by highwaymen who, along with footpads, declined because of better policing in the early nineteenth century. The last highwayman was reported in 1831 and street robberies diminished greatly thereafter. Nevertheless, the public's continued anxiety was manifested in periodic alarms, such as the garotting panics of the 1850s and 1862, when prosecutions increased in response to lurid press accounts rather than to an actual increase in robberies. The other violent property crimes – burglary (which occurred at night) and breaking into houses and business premises – were less affected by policing and, as a result, this is the only category of crimes that did not decline after 1850. Its resilience led contemporaries (and some historians) to infer that there was a separate class of professional criminals. However, in reality, it was probably fostered by the greater opportunities presented by the growth of shops, warehouses and suburbs during Victoria's reign.
While the third category – offenses against the person – contained the most notorious crimes, like the brutal Ratcliffe Highway murders in east London in 1811 and Jack the Ripper's sadistic exploits in 1888, the sensation that they created testifies to their rarity. Such extreme violence generally consisted of spontaneous attacks on family members or acquaintances rather than pre-meditated aggression against the public at large. Indeed, murder, manslaughter and malicious wounding comprised less than two per cent of all indictments, a figure that is a fairly accurate indication of the level of such crimes since, with the exception of infanticide, their rate of prosecution was high. In contrast, lesser assaults often went unreported. Some victims had no choice because of poverty or subordination while others settled their own scores or concealed offenses such as rape and domestic violence. Even so, the volume of summary prosecutions for assault was sizeable and tended to swell in years of prosperity when wages and alcohol consumption were high. Overall, they reached a peak of 470 per 100,000 people in 1865 and then fell steadily to 118 per 100,000 in 1913.
Of the remaining indictments, those for currency offences and forgery were taken very seriously by the state but many bankers and merchants viewed capital punishment as too severe and refused to prosecute. The other two categories consisted largely of crimes associated with political disturbances and protests against novel agricultural and industrial practices and grain prices. Although of great interest to social and political historians, they constituted a very small portion of the criminal population.
The majority of criminal defendants were adult males, drawn from the poorest members of the community and often illiterate. However, women and juveniles also formed a substantial portion, particularly in the cities where both suffered from acute economic insecurity. Indeed, in some places in the eighteenth century, women regularly comprised thirty or forty per cent of defendants and even outnumbered men on occasions. Generally, they committed fewer violent crimes than men and were more involved in larceny. Officials were more inclined to ignore their offenses, especially when committed in partnership with husbands. Their indictments were less sensitive to economic crises, probably because some were supported by husbands and others resorted to prostitution (which was not legally defined as a crime). Finally, the level of their indictments fell faster, reaching its modern level of less than fifteen per cent of the total by 1900, probably as a result of changes in their social and economic roles. Juvenile indictments were similarly dominated by larceny but followed a different course. Although evidence is scarce, the number of young defendants seems to have been small in the eighteenth century and to have increased in the early nineteenth century. By the 1840s, more than ten per cent of offenders were under the age of seventeen and almost thirty per cent were under twenty. Subsequent government reforms reduced the number of youths in prison but not the level of indictments. In the early 1890s, 20% of people convicted were under 16 and another 20% under 21 and the problem continued into the twentieth century.
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