Tyburn: London's Fatal Tree (11 page)

The lack of an effective police system led to the emergence of the ‘thief-takers’. These were men, only occasionally women, who captured and either delivered up to authority or themselves prosecuted wrong-doers for whom rewards had been offered. The most famous of these was Jonathan Wild. In the early eighteenth century he combined thief-taking with receiving stolen goods and organising a vast, complex and lucrative network of underworld activity in London. Thief-taking could be a highly profitable business when rewards of £40 from public funds were available for those whose actions led to the conviction of highwaymen, coiners and burglars, for example. In 1720 an added incentive was a sum of £100 offered for the successful conviction of those who committed robbery within 5 miles of Charing Cross. This sum was more than most working men received in wages in three or four years. Additionally the various societies concerned with the ‘reformation of manners’ from the 1690s offered rewards for those whose actions brought to justice blasphemers, Sabbath-breakers and others guilty of ‘immoral acts’. The existence of these rewards encouraged corruption, blackmail and perjury. Informers and thief-takers destabilised and weakened the criminal world by sowing suspicion and disunity but also confused the boundaries between criminality and legality. The state was effectively recruiting criminals to act on its behalf.

A movement for reform began when Henry Fielding gathered together a group of constables noted for their relative integrity who reported directly to him on their activities. They were given a regular salary which reduced the temptations of bribery and corruption. ‘Mr Fielding’s People’ as they were initially known evolved into the famous Bow Street Runners and mostly acted in cases where a reward was involved which encouraged their efforts. This primitive policing system helped the people of London to feel that the streets were safer. Henry Fielding and his blind half-brother Sir John Fielding owed much of their relative success to the compilation of what would now be called a database which gave them comprehensive information about London’s criminals and their activities. The growing success of the Bow Street operation meant that it became the prototype for other forces such as a horse patrol established in 1763. This was a mounted force which patrolled the major routes into London and had some success in reducing the activities of highwaymen. In about 1780 the foot patrol was established which regularly made the rounds of the streets of the City and other parts of the metropolis. Also effective in tackling crime was the publication
Hue and Cry
, later renamed
Hue and Cry and Police Gazette
, which was published from Bow Street and distributed information about wanted offenders and their suspected crimes. This made it more difficult for criminals to evade detection by moving their operations around the country.

Mention should be made at this point of what became known as the ‘Tyburn Ticket’. Sanctioned by Parliament in 1699, this was a document presented to a person who had successfully brought a prosecution ending with the execution of the felon concerned at Tyburn. With it he claimed exemption from various onerous or unwelcome public duties such as jury service. A Mr George Philips of Bloomsbury was the first person to receive one of these tickets after he had successfully brought two housebreakers to justice. The Act allowing this practice was repealed in the reign of George III, but as late as 1856 an armourer from Bond Street in London successfully claimed exemption from jury service upon producing a Tyburn Ticket. The judge involved had clearly forgotten that this privilege had been terminated. These tickets had become negotiable and were bought and sold surreptitiously at prices that could reach three figures.

Parliament created a very large increase in the list of capital offences during the eighteenth century in an attempt to tackle an apparently serious increase in the level of crime. What became known as the ‘Waltham Black Act’ of 1722 imposed the death penalty on those apprehended merely for being armed and disguised on the open road, open heath or in forests where there was game; for wounding cattle; for setting fire to crops; and various other rural crimes. Other legal enactments which sought to control the common people included the Riot Act, the Combination Act and the Workhouse Act. The Riot Act of 1715 proved to be a very useful measure against collective activity. Under its terms, any gathering of twelve or more people assembled for what were identified as ‘unlawful purposes’ had to disperse within an hour of its proclamation as a riot by a magistrate. Failure to disperse rendered all present guilty of felony. This hardening of attitudes saw some people declaring that hanging was too good for convicted felons who should be broken on the wheel instead.

In fact penal policy at this time was by no means straightforward. The early eighteenth century saw significant reforms to the criminal law and the ways in which it was enacted. While increasing the deterrent effects of the law, these reforms were also characterised by elements of humanity and practicality. Increasingly the courts imposed non-capital punishments on convicted felons. These might involve detention with hard labour or transportation to the American colonies. The victims of crime were encouraged to bring prosecutions themselves. Much has been written in the past about Britain’s ‘Bloody Code’ with horror stories of how children of twelve or less were despatched to the gallows for shoplifting or transported for crimes that nowadays seem trivial. This suggests a brutally retributive penal system that was the desperate response of the authorities to levels of crime that were apparently getting out of control. The reality was more complex.

In London the spectacle of hanging at Tyburn occupied a central place in judicial and penal practice until the 1780s. However, simple discouragement of crime by terror was not an effective expedient against much of the crime that was perpetrated in London, and in practice eighteenth-century legal and penal policy was characterised by flexibility. It made considerable use of the royal prerogative of pardon and developed a pragmatic balance between deterrence and terror. J.M. Beattie sums up:

An overriding pattern is clear, despite fluctuations over time and differences from place to place. The stern imperative of a criminal code in which, under the Tudors, execution appears to have become mandatory for a wide range of property crimes gave way in practice to a more moderate regime, the harsh sanctions of the law being blunted by jurors and judges alike. More acquittals and partial verdicts … resulted in falling rates of hanging and the elaboration of a number of alternative, non capital punishments.

(Beattie 2001: 279)

Property became sacrosanct, elevated in law almost to the position of a deity. John Locke in
Two Treatises of Government
, published in 1690, acted as the ideologue and mouthpiece for the men who wanted a form of government which allowed them to maximise the wealth they could accrue from manufacturing, trade and finance. ‘Government has no other end but the preservation of property’, Locke said with disarming frankness. In order to safeguard wealth and property, governments over the next century created a penal code which, at least on paper, was of appalling ferocity. Those classes which dominated Parliament used the criminal law and the creation of more and more capital offences to support a redefinition of property and the purposes of government. As Douglas Hay said, ‘the gentry and merchants and peers who sat in Parliament in the eighteenth century set new standards of legislative industry, as they passed act after act to keep the capital sanction up to date, to protect every conceivable kind of property from theft or malicious damage’ (Hay et al. 1977: 22).

In the eighteenth century, the inadequacies of the police system meant that only small numbers of those who offended were apprehended and brought to justice. Therefore those who were caught were liable to be made an example of and treated with considerable ferocity. However, what initially appears to be a cruelly vindictive penal code turns out often to be something very different because of a considerable discrepancy between theory and practice. As J.M. Beattie argues: ‘In the century after the Restoration, in a period in which the society and the culture of the metropolis were undergoing considerable change, the elements of an alternative means of dealing with crime in urban society were emerging in policing, in the practices and procedures of prosecution, and in the establishment of new forms of punishment’ (Beattie 209: x).

Since Elizabethan times, juries had frequently practised what Sir William Blackstone called ‘pious perjury’. This meant that the severity of the law was often mitigated by juries when prisoners were charged with capital offences. Where theft had been involved, for example, they sometimes undervalued the articles stolen so that the crime no longer constituted grand larceny, a capital felony, but instead petty larceny, a misdemeanour attracting a lesser punishment. Judges on their own initiative sometimes dismissed cases and reprieves were by no means uncommon. They often sentenced convicted felons to transportation rather than hanging. A number of women avoided the death penalty by pleading ‘benefit of the belly’. This allowed them a respite until the baby was born and in practice usually meant they were ultimately pardoned. Women in Newgate awaiting trial or execution for capital offences often bribed the warders to allow men to visit them for the purpose of sex. The hoped-for outcome was, of course, pregnancy. The so-called ‘Bloody Code’ was actually highly flexible in practice.

When the prisoner in the dock was well-to-do, he might have recourse to bribery. False witnesses would be produced, happy to tell the grossest lies in court in return for payment. They might be associates of the accused or what were known as ‘straw men’, professional witnesses who sauntered around outside the court advertising their trade by sticking pieces of straw in the buckles of their shoes. They would lie on behalf of anyone or say absolutely anything for money. Corruption was deeply entrenched in all aspects of public life in the eighteenth century and the legal and judicial systems were no exception.

Juries, too, could be bribed. They came to their decisions very quickly by today’s standards. Jurors were more socially cohesive than today, consisting of those who met certain property qualifications and usually had shared values. They often happily concurred with the recommendations of the foreman, an older and more experienced man. However, although jurors were not the social peers of most of the wretches over whose fate they deliberated, they could act with genuine compassion. People of previous good character or those who could convince the court of extenuating circumstances might well be treated leniently. For example, Ann Flynn appeared before a court in London in 1743 charged with stealing a shoulder of mutton. The court was told that she only committed the crime when her husband, the family breadwinner, became unable to work through illness and she did so in order to feed her starving children. The jury declared that she was indeed guilty but recommended clemency. The judge, combining professional discretion with compassion, proceeded to fine Anne the substantial sum of 1
s
. It was immediately paid by the jury itself.

Many serious offenders escaped hanging through the curious practice of benefit of clergy. This had its origins in the conflicts between the jurisdiction of the Church and that of the state in the Middle Ages and accorded clerics the right to be tried for certain types of felony in the ecclesiastical, rather than the royal, courts. Proof of clerical status was rather generously taken as the ability to read, a test which became increasingly meaningless as literacy became more widespread. During the reign of Henry VII, it was declared that those convicted of felony, in particular theft and manslaughter, might escape hanging in the case of a first conviction if they could demonstrate that they could read. In practice, if the prisoner could recite Psalm 51 or at least that part known as the ‘neck verse’, then he would be saved from the gallows. Judges even exercised discretion when benefit of clergy was claimed and might err towards clemency by ignoring a hopelessly unlettered mumble by a supplicant who could not even memorise the required, brief passage, let alone read it. In cases where a successful plea of benefit of clergy was submitted for the court’s consideration, the judge and the jury could exercise considerable discretion. They might, for example, acquit the defendant of a non-clergiable offence but find him guilty of a lesser, clergiable crime. This came to be known as a ‘partial verdict’.

An unpredictable, even capricious mixture of terror and apparent humanity and clemency exercised by the courts added powerfully to their mystique. The elaborate rituals whereby bewigged judges in ermine-tipped scarlet robes donned the black cap when death sentences were solemnly pronounced emphasised the majesty of the law and tended to overawe those who offended against it. Flexibility in the application of the law could mean inconsistency. The court’s decision might therefore be unclear until the very last minute, heightening the tension. There were also ‘general’ or ‘circuit’ pardons. These were issued occasionally in celebration of particularly auspicious public events and could even result in hardened recidivists getting off scot-free.

The names of those condemned to death at the Old Bailey would be formally presented to the king for the possible exercise of his prerogative of mercy. In practice, especially after 1688, these cases were usually reviewed by the Cabinet Council at which the monarch might not necessarily be present. The prisoner would not appear himself although a petition might be offered up on his behalf. The Recorder of the City of London presented a report containing what he saw as the facts of the case to a Council meeting. He might have to answer questions but the petition was only one item in what was frequently a crowded agenda and there is no evidence that it was dealt with at greater length than any other item. The Council took a vote and the Recorder would make his way back to Newgate bearing what was known as the ‘dead warrant’ which gave the names of those who were to be hanged and the day to be set aside for the execution. It is likely that such factors as signs of remorse, of the felon having been duped by recidivist associates, his previous character and the nature of the offence would be taken into account. It was somewhat arbitrary.