Saturday, January 17, 2015

Criminal Injustice

by Jude Knight

A plot point in my novel, Farewell to Kindness, led me to research the justice system of the late 18th and early 19th century, It's a fascinating period - a time of change in attitudes to crime and legal remedies for crime, as in so much else.

Our modern view is that one law should apply to all. It doesn't always work. Money buys better lawyers, for a start. But the basic principle is that we have laws that lay down the crime and the range of punishments, and judges who look at the circumstances and apply penalties without fear or favour.

The pre-19th century situation in England was far, far different.

I wanted to have some minor players in my novel caught with contraband goods, arrested, and incarcerated. I figured they'd be ripe for a little bit of pressure to make them give up some information about the real villain.

Ooops. 21st century blinkers on.

With no central police force, a completely different attitude to crime, and no public enforcement, my villains were unlikely to even be arrested, let alone locked up.

No police force

One of the huge social debates of the late 18th and early 19th century involved the idea of a centralised police force. People in all works of life argued against the idea. They saw it as a form of oppression. They thought it was their job to defend themselves and their families. They expected the government to defend them from foreign threats, but they certainly did not want a standing army - which was the common view of the police - telling them what to do on English soil. And they preferred local, not centralised government.

A completely different attitude to crime

Today, crime is seen as an offence against the public order. Before the end of the Napoleonic Wars brought increasing hardship and growing civil unrest, crime was seen a nuisance in society rather than a threat. Crime, with a very few exceptions such as treason and coining, was an offence against an individual.

This attitude — and the harsh penalties of the day — led to a strange result. Few offenders actually suffered the full consequence of the law.

In those days, offences fell into one of three categories: minor offences, clergyable felonies, and non-clergyable felony. A minor offence, such as the theft of something worth less than a shilling, would see the offender publicly shamed in some way — perhaps whipped, or put in the stocks.

Everything else was a felony, but the punishment varied depending on whether or not the offender could claim benefit of clergy. Benefit of clergy meant being tried by a church court, and church courts didn’t impose capital punishment. Originally intended for clerics, by the 18th century, benefit of clergy could be claimed by anyone who could read.

But if you couldn’t read, then the punishment for any offence that wasn’t minor was hanging. In country areas, where people knew each other, several things could save the felon from neck-stretching.

First, knowing that hanging was the penalty made people reluctant to prosecute if they didn’t think the penalty was deserved. Second, many defenders were acquitted or found guilty of a minor offence — and the record often makes it clear that juries have failed to record details in their verdict that would have meant a conviction for a felony. Third, a conviction might not mean a hanging. People could be pardoned, and most were. Some were pardoned and set free, perhaps because of local influence. Many more were pardoned on the condition they agreed to be transported.

No public enforcement

While in theory anyone could be called on to help apprehend someone committing a felony, in practice, enforcement was the responsibility of the local justice of the peace or magistrate, who appointed constables (and, in cities, night watchmen) to keep the peace. The job of constable was a generally a part-time one, particularly in villages.

People who left a particular area didn’t have to fear that the local magistrate or constable would follow. That wasn’t the way it worked. But they might have to watch out for a thief-taker. Thief-takers were fundamentally bounty-hunters who looked for offenders in order to claim a reward.

Thief-takers were an interesting breed. The hero of my second novel is a thief-taker, but an honest one. A dishonest thief-taker might blackmail criminals and take protection money or entrap people into committing crimes in order to catch and prosecute them.

Because crime was considered to be a private matter, it was up to private individuals to prosecute it. Even if the crime was smuggling or highway robbery (both considered crimes against the Crown), the law treated it as a crime against the King as an individual.

Why my plot idea didn’t work

So, in the mind of the law enforcers of the time I'm writing about, contraband goods offended those from whom the goods were stolen, and repaying those people set the balance right. And if a little of the payment stuck to the hands of those enforcing the law, that was only fair, since they'd done the work.

So when the Excise or Customs officers (or maybe both) and the local representatives of the law turned up at my villains’ door, the conversation would have gone something like this:

"What do you lot want? I'm about to have my dinner."
"Now look here, Mr XX. Your warehouse down on the wharf is full of stolen and smuggled goods."
"My goodness, I wonder how that happened."
"You knew all about it. We have evidence, and a deposition from a real Earl. And we have to listen to real Earls, because they're important."
"Bother. You've got me there."
"Yes, it's a fair cop. So consider yourself arrested."
"Really? How about if I just give you the goods? And here’s a little bit extra for yourselves."
"Excellent idea. The sale of those goods should fetch a pretty penny."
"I'll even loan you a cart to take it all away."
"Thank you, Mr XX. Have a nice dinner."


After a career in commercial writing, editing, and publishing, Jude Knight is returning to her first love, fiction. She loves capable determined heroines, and heroes who appreciate them. She published a novella, Candle’s Christmas Chair, before Christmas, and it is currently on several bestseller lists for free books on Amazon. Her first novel is Farewell to Kindness, number one in The Golden Redepennings series, publication date 1 April 2015. She has several novels in progress, and plot outlines for 40+, all set in the early 19th century. The plans include seven series, several stand-alone novels, novellas, and short stories, and a number of characters who intersect across series.

Candle’s Christmas Chair

When Viscount Avery comes to see an invalid chair maker, he does not expect to find Min Bradshaw, the woman who rejected him 3 years earlier. Or did she? He wonders if there is more to the story. For 3 years, Min Bradshaw has remembered the handsome guardsman who courted her for her fortune. She didn't expect to see him in her workshop, and she certainly doesn't intend to let him fool her again.

Contact Jude


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