Criminal (in)justice in 18th-century England

A trial at the Old Bailey, c.1808
A trial at the Old Bailey, c.1808

This the first of three posts which will look at the history behind the TV series Garrow’s Law. Garrow’s Law is an immensely entertaining series based on the life of the barrister William Garrow (1760-1840). It has its historical inaccuracies – for one thing, quite a few of the cases attributed to Garrow were not his in real life. Nevertheless, it remains a fascinating portrait of the criminal justice system in the later 18th century, and Garrow is an interesting figure worth our attention. Particularly in his early years of criminal practice at the Old Bailey (the central criminal court in London), Garrow fought hard for justice for all, in a justice system plagued with corruption and inequality.

Criminal (in)justice in 18th century England
Because the popular representation of the 18th century is intimately bound up with the Enlightenment, many people today tend to think of it as a time when society was inexorably moving into the light of a golden rational future and climbing out of the dark, superstitious seventeenth century/medieval era/Dark Ages/whichever awful, patently irrational period you care to name. However, looking at the criminal justice system, many of the features which we take for granted were actually formalised under the philanthropic, reformingpioneering awful, stuffy, prudish Victorians. The Georgians were not particularly enlightened in their treatment of criminals; 18th century England was a terrible place in which to be accused of a crime. If you were accused of a felony (murder, rape, arson or theft) you were not allowed defense counsel in court until 1730 and were very unlikely to have it even after then, and if you were found guilty, your offence was likely to be severe whatever your crime.

This is because the 18th century witnessed the enormous expansion of the so-called ‘Bloody Code’. In 1688 there were 50 offences which carried the death penalty; by 1800 there were 200 offences punishable by hanging. Perhaps inevitably, the majority of these were what we would see as minor offences. People were hanged for offences ranging from perjury, to ‘impersonating another to receive a seaman’s wage’, to destroying silk on a loom, to the theft of sheep and cattle. That not all of those people convicted of capital offences were actually hanged does not change the fact that there was a widespread  culture of capital punishment. In London, the executions at Tyburn were public spectacles which could draw crowds of thousands.

A gallows ticket to see the execution of the infamous thieftaker and criminal gang leader, Jonathan Wild, in 1725
A gallows ticket to see the execution of the infamous thieftaker and criminal gang leader, Jonathan Wild, in 1725
A hanging at Tyburn, London
A hanging at Tyburn, London

 

If you were convicted of a felony in 1700, your trial might go something like this:

If you can afford it, you are allowed to ask for a lawyer’s advice on points of law relating to your case. However, you’re not allowed to have a lawyer to represent you in the courtroom, although the prosecutor is. You enter the courtroom in the knowledge that you are presumed guilty until proven otherwise, so the jury are already biased against you. Your trial is very brief; most trials are only 30 minutes long (that includes the jury’s deliberation). You are expected to make your own defense, the idea being that ‘it requires no manner of Skill to make a plain and honest Defence’; if you’re truly not guilty, your countenance will clearly radiate innocence.  But you might be too intimidated, too illiterate, or just too drunk to say anything, let alone formulate such a defense as will convince the jury to acquit. The courtroom is dominated by the judge, who interrogates your witnesses. The entire system is skewed towards the prosecution. If  the jury finds you guilty of a felony, you will very likely face hanging or transportation. Age, disability and gender are no barriers – children can be, and are, sentenced to death for stealing food. When the judge sentences you to hang, he says that you will ‘be taken from hence to the place from whence you came, and from thence to the place of execution, there to be hanged by the neck until you are dead’, adding ‘the Lord have mercy on your soul’.

Aside from the lack of adequate representation, there were other major problems within the criminal justice system. Perjury was rife, not because people were inherently untruthful, but because the whole system was set up in a way which (unintentionally) encouraged it. The government offered rewards for successful criminal convictions. A certain profession of men called ‘thief-takers’, whose heyday was from the 1720s to the 1750s, took advantage of these. Private citizens would go to a thieftaker and ask them to apprehend a criminal, and the thieftaker would be paid with a share of the reward money. The problem was that often, in their desperation for money, they would apprehend just about anyone and thus profit from the conviction of innocent men and women.

All of these problems with the criminal justice system – the Bloody Code, the difficulty of defense representation, perjury, and dishonest thieftakers – are covered in Garrow’s Law. The next post will look at how William Garrow attempted to address these issues, often successfully.

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