The people of eighteenth-century England were a tough breed, accustomed to hardship and violence, and capable of surviving anything except death. Two corporals fought each other with bare fists till both expired; two sergeants dueled till both suffered mortal wounds. A soldier who asked leave to marry an army prostitute was punished with a hundred lashes; he appeared the next day, his back all raw, before the same officer, and repeated his plea; this time it was granted. A drummer boasted that he had received 26,000 lashes in his fourteen years with the army; he received four thousand more in the one year 1727; he recovered cheerfully, and was soon reported as “hearty and well, and in no ways concerned.”74
Brutal punishments, administered in public, encouraged public brutality. By a law repealed in 1790 a woman convicted of treason, or of murdering her husband, was to be burned alive, but custom allowed her to be strangled before burning.75 Men guilty of treason were cut down from the gallows while still alive; their bowels were extracted and burned before their faces; they were then beheaded and quartered. Gallows were raised in every district of London, and on many of them the corpses were left for the nourishment of birds. A man might hang for half an hour before he died. It was usual, however, to dull the senses of the condemned with brandy; and the hangman, if well disposed, would pull on the dangling legs to hasten death.
The callousness of spectators and criminals gave hangings the character of a festival; people lined the road to see the condemned ride in the carts to Tyburn; stalls and peddlers sold gin and gingerbread, nuts and apples, to the crowd; street singers sang ballads not quite so well as Captain Macheath in The Beggar’s Opera. The public, never enthusiastic about laws or policemen, made heroes of criminals who carried off their exploits successfully, or, when captured, faced trial and death with scorn or smiles. Jack Sheppard, “Rob Roy” (i.e., Robert Macgregor), Dick Turpin, Jonathan Wild, all flourished in this period. Jack, after almost daily robberies in or near London, was betrayed to the police by Jonathan Wild; he escaped, was rearrested, escaped again, was caught in his cups, and was hanged, aged twenty-two, before a crowd of thousands that expected him to escape even with the noose around his neck. Defoe and Ainsworth told his story profitably, Sir James Thornhill painted his portrait. Turpin distributed money to mourners to follow his cart in state to the gallows; but what made him most famous was the fictitious account that Ainsworth wrote of Dick’s breakneck ride from London to York. Likewise, Fielding’s Life of Mr. Jonathan Wild the Great has carried that scoundrel down the centuries. Most of that powerful satire is fiction, but it is no more interesting than the facts. Jonathan, like Janus, had a double face. He organized, managed, and exploited thieves, bought their stolen goods at his own price, and betrayed them to the magistrates when his confederates rebelled. At the same time he opened a pretty office where he received people who had been robbed; he promised, for a substantial consideration, to get their goods or money returned to them; on the proceeds he maintained several mistresses, and lived in style for nearly fifteen years. But his prosperity outstripped his prudence; he was arrested as a dealer in stolen goods; and he was hanged to the joy of an enormous multitude (1725). He may have been part model for Mr. Peachum in The Beggar’s Opera.
Lawlessness ran the social scale from the gentle pickpocket to the smuggling merchant to the titled duelist. There were hundreds of duels, some in the open street, some in Hyde Park or Kensington Gardens, but most of them on the “Field of the Forty Footsteps” behind Montagu House (now the British Museum). They were seldom fatal, for pistols were clumsy, and few men could aim them accurately at thirty paces; probably many combatants were careful to fire above the head; in any case reconciliation was normally achieved after the first drawing of blood. The duels were illegal, but were humored on the ground that they encouraged a cautious courtesy of speech. Arrests were rare except for fatalities; and if the survivor could show that he had followed the rules of the game he was released after a brief imprisonment.
In 1751 Fielding, then a magistrate, published An Enquiry into the Causes of the Late Increase of Robbers, etc., with Some Proposals for Remedying the Growing Evil. He ascribed the increase predominantly not to poverty but to the rise of “luxury” among the lower classes; the common people now had money enough to go to taverns, amusement parks, theaters, masquerade dances, and operas; and there they met persons adept in promiscuity and crime. The second cause, the great novelist thought, was an increase in the consumption of gin.
Gin is the principal sustenance (if it may be so called) of more than an hundred thousand People in this Metropolis. Many of these wretches swallow Pints of this Poison within the Twenty-four Hours; the dreadful effects of which I have the misfortune every day to see and to smell, too.76
The third cause was gambling. The fourth was the incompetence of the law; it left the capture of criminals to watchmen
chosen out of poor, old, decrepit people who, … armed only with a pole, which some of them are scarcely able to lift, are to secure the persons and houses of his Majesty’s subjects from the attacks of gangs of young, bold, stout, desperate, and well-armed villains.77
Even if the watchman was not terrified by the violence of the robbers, he could be bribed; so could the constable to whom he reported; so could the magistrate to whom the constable brought a criminal. The policing of London was entrusted to 1,000 constables, 474 beadles, 747 watchmen. Between arrest and conviction lay 2,214 lawyers in London, some of them men of legal learning and reasonable integrity, some of them not quite so. Dr. Johnson said of a man who had just left the room that he “did not care to speak ill of any man behind his back, but he believed the gentleman was an attorney.”78
Fielding did not agree with Coke that “the wisdom of all the wise men in the world, if they had all met together at one time, could not have equaled” the excellence of the English constitution. He would have admitted that that constitution, as Voltaire and Montesquieu had recently pointed out, had admirably arranged for the protection of the individual and his property from the tyranny of a king; he would have praised habeas corpus and trial by jury, and the great law schools in the Inns of Court. Certainly it was no small matter that an Englishman was free from arrest without legal warrant, from imprisonment without trial, from punishment without conviction by a jury of his peers; that he could not be taxed except by consent of Parliament; that he could assemble with his fellows provided he committed no disorder; that he might say what he pleased, short of sedition, libel, obscenity, and blasphemy. But the lawmakers of England had been so eager to protect the individual from the state that they had failed to protect society from the individual. The machinery of enforcement was breaking down before the spread and organization of crime.
The common law was administered by magistrates, or justices of the peace, whose decisions could be appealed to judges sitting in Westminster or traveling six months a year to hold assize courts in the county towns. These judges enjoyed life tenure, and displayed a reasonable level of integrity. Ecclesiastical courts survived, but they were limited to trying non-criminal cases involving only the clergy, or the validity of marriages, or the administration of wills. The Court of Admiralty had jurisdiction over exclusively maritime cases. Above these courts was the Court of Chancery, presided over by the lord chancellor. The supreme court of the land was Parliament itself, with the Commons trying commoners and the Lords trying peers. Equality before the law was still imperfect, for peers usually escaped punishment. The fourth Earl of Ferrers was executed in 1760 for killing his steward, but when the Duchess of Kingston was tried before the House of Lords in 1776 and was convicted of bigamy, she was freed with only the payment of fees. Latin remained the language of the courts till 1730, when English displaced it, paining Blackstone grievously.
In trials for capital felony (and most felonies were capital) the accused was allowed to hire counsel if he could afford one; the counsel might cross-examine the witnesses for the prosecution, but was not permitted to address the court; this was left to the prisoner, who, through weakness of body or mind, was in many cases incapable of presenting his defense. If he was acquitted he was returned to jail till he had paid all the fees exacted by the keepers for their services; before this regulation was revoked in 1774 there were several instances of acquitted men dying in jail. If convicted, the prisoner faced one of the severest penal codes in the history of law.
The code was an advance on the past, and on Continental procedures, in barring torture and punishment by the wheel, and it no longer split noses or cut off ears. Otherwise it had all the barbarity that sturdy Englishmen then considered necessary to control the natural lawlessness of mankind. When the penalty was flogging at the tail of a cart drawn through the streets, the executioner would sometimes receive an extra sum, collected from the spectators, to ply the thong with special vigor.79 A prisoner who refused to plead on a capital charge was required by law to be laid naked on his back in a dark room, and weights of stone or iron were placed upon his breast till he was pressed or choked to death;80 this law, however, was not enforced after 1721, and was repealed in 1772.
Throughout the eighteenth century acts of Parliament added to the number of crimes for which the statutory penalty was death. In 1689 there had been fifty such; by 1820 there were 160. Murder, treason, counterfeiting, arson, rape, sodomy, piracy, armed smuggling, forgery, destroying ships or setting them on fire, bankruptcy with concealment of assets, highway robbery, housebreaking, burglary of over forty shillings, shoplifting above five shillings, maiming or stealing cattle, shooting at a revenue officer, cutting down trees in an avenue or a park, setting fire to a cornfield, sending threatening letters, concealing the death of a husband or a child, taking part in a riot, shooting a rabbit, demolishing a turnpike gate, escaping from jail, committing sacrilege—all of these, and a hundred more, were, under the first three Georges, capital crimes. These laws reflected the resolve of Parliament to protect property. They may have been in some measure the result—and in part the cause—of popular lawlessness and brutality, and they may have helped to form the present law-abiding habits of the British people. The severity of the code was mitigated by the frequent refusal of judges or juries to convict, or by quashing the indictment on a technicality, or by arbitrarily fixing the value of a stolen article at less than the amount that would make the theft a capital crime. In time of war offenders might be pardoned on condition of joining the army or navy.
Lesser crimes were punished by imprisonment, the pillory, whipping, hard labor in houses of correction, or transportation to the colonies. By a law of 1718 convicted prisoners were sold to a contractor who shipped them, at his own expense, generally to Maryland or Virginia, and sold them, usually at auction, to tobacco planters for the term of their sentences. The condition of the prisoners en route resulted in a high percentage of deaths, and such enfeeblement of the remainder as to make them for a time incapable of labor. One contractor reckoned that he lost a seventh of his human cargo on an average voyage.81 This traffic was ended only by the American War of Independence.
Such deportation was often preferred to imprisonment, for prisons were notorious for inhumanity and filth. On his entry the new arrival was put in irons, heavy or light according to his payment to the warden. His bed was straw. His food consisted of a pound of bread per day, unless he could arrange to supplement it with gifts from outside. Except in Newgate Prison little attempt was made to keep the prisons clean. Dirt and germs accumulated, infecting almost every prisoner with “jail fever”—often typhus or smallpox. Johnson thought that twenty-five per cent of the permanent prisoners died through “putrid fevers.” The stench of foulness and disease was so strong that when a prisoner was brought to court the judges, jury, witnesses, and spectators took frequent sniffs of camphor, vinegar, or aromatic herbs to offset the smell. In May, 1750, a hundred prisoners from Newgate came to trial in the “Old Bailey,” the chief criminal court of London. The fever they spread was so virulent that of the six judges who tried the case four died; of the jury and the minor officials, forty died; after this lesson the court ordered that thereafter all prisoners coming to trial should be washed with vinegar, and that sweet-smelling herbs should be placed in the prisoner’s dock.82
A man sued for debt, judged guilty, and unable or unwilling to pay was committed to such a jail until he paid, or until his creditor withdrew the suit. The creditor was bound by law to pay fourpence a day toward the support of his prisoner; but if he failed to do this the debtor had no recourse but to sue him—which cost money. If, however, the prisoner could get funds from outside, he could bribe the warden and others to let him enjoy better bed and board, wider liberties, the comfort of his wife, even, now and then, a holiday in the city. A penniless debtor, if unable to pay for food, might slowly starve on the bread allowed him. Samuel Johnson calculated that of twenty thousand bankrupts imprisoned in an average year, five thousand died of privation within twelve months.83England had not found a milder way of protecting the rising business class from irresponsible borrowing or fraudulent bankruptcy.
Some mild protests were raised against the severity of the penal code. Johnson, no sentimentalist, pointed out in 1751 the danger in making so many crimes capital: “To equal robbery with murder is to … incite the commission of a greater crime to prevent the detection of a less.”84 The most powerful criticisms of prison administration appeared in the novels of Fielding and Smollett, and in the drawings of Hogarth. A modest amelioration was effected by James Oglethorpe, whose varied and energetic career shows the nobler side of John Bull. In 1714, aged eighteen, he left college to join the army of Prince Eugene of Savoy, and served in several actions against the Turks. Returning to England, he was elected to Parliament. A friend having been imprisoned for debt, and having died in jail of smallpox contracted there, Oglethorpe persuaded the Commons to appoint a committee—of which he was made head—to inquire into the conditions of the London prisons. The filth, disease, corruption, and oppression revealed by this investigation shocked for a moment the conscience of England. Some especially culpable wardens were dismissed, some new regulations mitigated old abuses; but most of the evils remained, and the actual reform of the prisons had to wait for John Howard and the final quarter of the eighteenth century. Oglethorpe turned to emigration as a means of reducing the pressure of poverty in England. In 1733 he founded the colony of Georgia; for a time he served as its governor; he forbade the importation of slaves, and welcomed the Moravians, and John Wesley, and Protestant refugees from Austria. Again in England and Parliament, he secured an act exempting the English Moravians from taking oaths or bearing arms. He became an intimate friend of Johnson, Goldsmith, and Burke, and lived to the age of eighty-nine. Pope crowned him with a couplet:
One driven by strong benevolence of soul
Shall fly like Oglethorpe from pole to pole.85