I keep searching for the Dummies Guide to English Criminal Justice in the Nineteenth Century, but it doesn’t seem to exist. There are books about the history of the police and oceans of books about a bucketful of scandalous crimes – so many that I now scan for the name ‘Florence Maybrick’ (an excessively famous poisoner). If I see it in the table of contents, I move on along.
So when I found David Bentley’s book in the UT card catalog, I danced for joy. Alas, it isn’t quite the handy guide for mystery writers that I’m dreaming of, but it is interesting. I’m going to give you some of the highlights.
Bentley begins his preface thus: “This is a book for lawyers and historians interested in the evolution of our criminal trial system.” Note the emphasis on the trial. I need soup to nuts — from the first constable to arrive on the scene to sentencing, with a minimum of legalistic detail and sources relegated to the back of the book. Sigh.
How they were tried
If I were writing about a nineteenth century lawyer, I would love this book for its clarity of exposition. I learned more about a few things I only vaguely knew, including the proper use of some legal terms.The first distinction is between the two types of trial, summary and indictment. Summary trials are those without a jury: the judge decides the case alone. In the U.S., any crime punishable by six months of incarceration or more requires a jury trial. We don’t write novels about petty crimes, so let’s move on.
All serious crimes were and are tried on indictment. (Note that ‘on.’) The indictment is found by a jury… after hearing the Crown witnesses. The accused is arraigned upon it.” If the accused pleads guilty, a jury is empanelled to try him. ‘Arraigned upon an indictment’ is the phrase I didn’t know. It’s got rhythm. It sounds like the start of a poem.
Before 1800, the evidence for the Crown was presented first. “Of their evidence the accused had no forewarning. He is allowed no counsel to defend him. Lest he detect a flaw in the indictment, he is refused a copy of it. There are no rules of evidence. The accused is not always confronted by the witnesses who speak against him. Confessions obtained from him or his accomplices by torture are not only admitted in evidence but regarded as particularly cogent proof. He cannot himself give sworn evidence nor can he call witnesses. For his defence he is obliged to confine himself to disputing with witnesses and the prosecutor. During this altercation he may be questioned both by the judge and prosecuting counsel.” (p. xiii.)
Yow. Let’s remember that next time we complain about the law’s delay. But don’t you love Bentley’s prose?
In 1836, the Prisoner’s Counsel Act gave the accused the right to be defended by counsel or attorney and to have witnesses examined and cross-examined by them.
“Throughout the nineteenth century, the protection conferred upon the accused by the law of evidence was substantial. Not only did the law cast the burden of proof on the prosecution, it excluded rigorously excluded hearsay, involuntary confession, and evidence of the accused’s bad character. It also insisted that juries be cautioned about the danger of convicting without corroboration where the charge was perjury, or where the evidence came from an accomplice or a rape complainant (p. 205.)”
Crimes and punishments
“At common law, felonies were crimes conviction for which resulted in an automatic forfeiture of all the felon’s properties to the Crown. They were ‘venomous’ offences which ‘cost a man his property.” (p.2)
In the thirteenth century, there were only 6 felonies: homicide, larceny, robbery, burglary, arson, rape. Three violent crimes, two crimes against property, and arson, your well-rounded crime that harms both persons and properties. Felonies were added to the statutes at a pretty good clip over the next 400 years. By 1800, there were 200 on the books.
While all felonies were technically punishable by death (hanging), few felons hung. The Crown had the power to commute the sentence to something less dire, like transportation. Death or Down Under: which would you choose?
You might try pleading your clergy. After Becket was murdered, Henry II was forced to allow the church to try its own criminals. In early days, just being able to read was proof enough. Who else would bother to acquire that useless skill? By the fifteenth century, laymen were getting in on the game. Ben Jonson escaped hanging by reading the neck verse (Psalm 51, verse 1) when he was arrested for killing a man in a duel in 1598.
They stopped handing felons over to the church in 1576, giving them a year in one of London’s hospitable prisons instead. They didn’t have Australia yet, poor things.
The list of offenses that were “clergyable” shrank slowly over the centuries, along with the number of felonies punishable by death. It surprises me how slow this process was. Drawing and quartering was only abolished in 1870, although it hadn’t been used since 1820. (1820!) Benefit of clergy was abolished in 1827.
Public whippings were abolished in 1861. Floggings thenceforward were carried out in the prison yard, with the press in attendance. There was lots of fighting about flogging over the century, reducing it mostly, but adding a few crimes as well. Living on prostitution was made whippable in 1898.
Transportation ended in 1860 when the Australian colonies refused to accept any more convicts. Penal servitude replaced it, originally designed to reproduce the experience of living on a penal transportation ship. Shiver me timbers!
Public hanging was abolished in 1860, again moving behind prison walls. By 1870, imprisonment had become the normal punishment for all but the pettiest and the most horrible crimes.
Robert Peel created the Metropolitan Police Force in 1829. I’ll blog about police in England at length later. It’s a good topic for my newfound pleasure in comparing the sixteenth and nineteenth centuries.
Once they’ve caught their offender, they bring her/him to the magistrate’s court. “Where the crime alleged was indictable the magistrates would conduct a preliminary examination, committing the accused for trial where the evidence established a prima facie case of guilt. If the offense was summary, they would try the case themselves.”
In cases of suspected homicide, the coroner could also commit an accused for trial. The coroner was obliged to hold an inquest into all suspicious deaths occurring in his district. He sat with a jury of 12-23 local citizens (men.) All witnesses who might have something useful to contribute were summoned to give evidence. This was all taken down in the form of written depositions.
Much of this was also reported nearly verbatim in the local papers, which we can read today, if we wish. The British Museum charges to access their newspaper archives online, unless you happen to be sitting in their reading room, but you can find lots of goodies in the Old Bailey archive. And there are lots of scenes of inquests lurking about in my visual memory. Agatha Christie novels and the movies made from them, probably. They held inquests in any sufficiently large place, often a tavern.
Law of evidence
This is what I was originally looking for. I have these fiendishly clever murders that my protagonists fear they can never prove in a court of law. So I needed to know what sorts of evidence were allowed in 1886. Bentley gives me more than I can use without answering my specific questions, but that’s the sad truth about researching a novel. You learn as much as you can and then take that little leap.
It surprised me that lawyers had so little role in criminal trials right on into the nineteenth century.
In 1800, it was unusual for either side to be represented by counsel, except in cases of treason. The accused had the right to cross-examine witnesses and at the end, the judge would call upon him to ‘make his defence.’ He could not give evidence on his own behalf, but he could call witnesses, either to fact or to character. This is new, part of the developing law of evidence. Other new elements were that the Crown bore the burden of proof, more rules concerning hearsay and involuntary confessions, and the practice of warning juries against convicting on uncorroborated accomplice evidence.
In 1800, England had no system of public prosecutors. Prosecution was regarded as a private rather than a public responsibility: ‘a matter for the victims themselves or other private individuals who could be persuaded to take a sufficient interest in the matter.’ … Even in 1900 England still lacked a national system of public prosecutors (pp. 83-4).”
The other thing that surprised me is that police were not allowed to speak to prisoners, much less interrogate them. That practice derived from their concern about involuntary confessions.
“One of the main exclusionary rules inherited by nineteenth-century judges was that rending involuntary confessions inadmissable. In Warickshall in 1783, the judges had defined an involuntary confession as one ‘got by promises or threats’… (p.221.)”
“Perhaps the most bizarre of all was the line of cases which fashioned an inducement out of the forms of caution in daily use by police officers and magistrates. The starting point of this line of authority was Drew (1838), where Coleridge J held that to caution a person that anything he said would be given in evidence for or against him constituted an inducement. It might, he explained, lead the prisoner to put forward an untrue story which he believed would help him at his trial (p. 223).”
This is hard to wrap my brain around, until I look at it the other way. We’ve had convictions in the US based on confessions elicited by the police that were later found to be false. Confessions made by frightened people trying to please their angry, important interrogators. It’s a problem, because interrogation is an important tool for the police in our times.
Victorians were more worried about criminals getting away with their crimes than with false convictions. We must also remember that it took the better part of that century to transfer responsibility for investigating crimes from the magistrates to the police. Remember, anyone could pursue a criminal and bring them to the attention of their local justice. The magistrate or coroner would then call witnesses to be deposed and evaluate whatever evidence the accusers could assemble.
Witnesses were the important part. There wasn’t much in the way of forensic evidence until the end of the century, and juries didn’t like it. It looked like so much hocus-pocus.
Police were discouraged from questioning prisoners, or even getting into conversations with them. They were legally forbidden to do so by the Metropolitan Police General Orders of 1873. These orders “prohibited any attempt by officers or others to extract a statement in the nature of a confession from a person brought to a police station on a charge of felony…” By 1882, that had evolved to “clear terms that it was wrong for an officer to question a person who was in custody or whom he was about to arrest (p. 231.)”
Well, there goes the best half of Law & Order! No wonder they didn’t have television in the nineteenth century.
Bentley, David. 1998. English Criminal Justice in the Nineteenth Century. London: The Hambledon Press.