Legal historian John Hostettler reviews “Whores and Highwaymen: Crime and Justice in the Eighteenth-Century Metropolis” by Gregory J Durston
Dr Durston has written a valuable and erudite work of reference taking the reader through every aspect of crime and punishment in London in the eighteenth century. In this sense the book is unique. In the past, he says, the City of London has frequently been studied in isolation from Westminster and urban Middlesex even though they formed a single conurbation throughout the century and crime and law enforcement in these areas were closely linked. Moreover, the work of the Old Bailey has frequently been scrutinised without reference to that of London’s various Quarter Sessions and many magistrates’ courts. This has provided a distorted image of Metropolitan crime and justice by focussing excessively on serious but unusual crimes, subject to draconian punishment, or by dwelling on minor offences that were frequently resolved informally.
In contrast, Dr Durston’s book considers both crime and the working of the criminal justice system over the entire Metropolitan area and its immediate hinterland during the whole of the eighteenth century. This enables him to provide an overview of how the various strands of that system interacted and changed course.
A major theme of this book is crime and punishment in London in the eighteenth century. At the time, London was a variegated city of a million men, women and children and, thanks to the tidal reach of the river Thames, it was a vast trading hub for most of the world. Daniel Defoe called it, a “Great and Monstrous Thing”. It was a London revealed to us in dramatic images in the paintings of William Hogarth. Hence most of the illustrations in the book, showing graphically the sordid and criminal side of life in the city, are reproductions of works of this great artist.
Life in the metropolis at that time was colourful and vibrant. However, power was in the hands of corrupt politicians and wealthy aristocrats. Within the city the wealth of the rich and the middle class contrasted sharply with the poor, many of whom struggled to stay alive in insalubrious and crime ridden areas. Robbery, often by whores and frequently with violence, was rife. Armed highwaymen seemed to cover all the approaches to the city. Death by hanging, often for minor offences, took place in public at Tyburn Tree or outside Newgate Prison and attracted large swathes of the population who viewed the grisly scene as a form of entertainment. For much of the century gin drinking was unrestrained and gave some sort of solace to the poor in the unremitting poverty surrounding them. This is the background of the genesis of London’s modern criminal justice system that the author illuminates.
Based on news reports and the invaluable Old Bailey Sessions Papers which reported trials over the whole century the book is divided into three parts: Crime and the Metropolis: Policing the Metropolis and Justice.
Crime and the Metropolis
The first part shows how London expanded and witnessed the rise of a middle class which enjoyed increased mobility and opportunities for skilled artisans to rise to a higher social position. Nonetheless, at the same time there was increased social segregation between the urban rich and poor, both on a geographical and personal basis including the polarisation of London’s “West End” and “East End”. As a consequence there was a decline in what Durston calls “communitarianism”. It meant, he says, a fall in the previously large amount of voluntary, amateur service stretching from gentlemen acting as justices of the peace to the middle and lower social orders performing as unpaid local constables, jurymen and watchmen. In this part he also explains the different types of metropolitan crime and deals with crime rates and patterns and the participation of women and juveniles.
In Chapter 5 the author deals with contemporary (and modern) explanations for metropolitan crime. One suggestion was that in a diverse society crime was the product of a lack of morals, and dissoluteness of manners of the common people. Innate human wickedness flourished because of an individual’s failure to resist the snares of the devil. This is examined in detail in the book together with a belief that crime could be attributed to social hardship and environmental stress. Poverty might result in theft but Durston does not see it as an entirely satisfactory explanation. There were also new opportunities for crime. “As London became a world city of international commercial importance… goods of all descriptions, whether luxury items of the basic necessities of life, were traded in huge quantities. Increased general wealth necessarily added to the value of property that was in circulation, providing further opportunities for crime and encouraging offenders”. Further suggested causes are also considered. Other aspects dealt with include criminal law and procedure with the important role of discretion in the criminal justice system of the time.
Transformation of the Criminal Law
The early eighteenth century saw the deprived and indigent driven to the courts, prisons and gallows where instead of rights and justice they were brought face to face with medieval laws and procedures compounded by utter prejudice. Yet, by the later part of the century, the same criminal law was being transformed as part of the profound shifts in society following the Glorious Revolution of 1688 and the commencement of the Industrial Revolution. The eighteenth century did not witness a great movement for criminal reform such as occurred in the nineteenth century. However, it often provided the impetus, and laid the ground, for it. For instance, the significant reform of giving accused persons the right to counsel for all purposes, which came with the Prisoners’ Counsel Act of 1836, was inspired by, and built upon, the efforts of counsel at the Old Bailey in the seventeenth century.
The interacting of phenomena was important. For example, a change in penal practice might, says Dr Durston, ultimately bring about totally unanticipated, and unplanned, changes in the law of evidence. The presence of large state rewards for prosecuting felons helped transform the trial process. Much depended on the chance involvement of individuals and their ideas of behaviour based, among other things, on perceived threats to the existing order. The eighteenth century was an era in which the law of unintended consequences frequently operated, making a “holistic” approach particularly valuable.
Part 2 covers policing the metropolis by constables and the Watch together with post-crime detection. And the metropolitan magistracy is examined at length. In the eighteenth century many towns and cities employed watchmen to police urban crime. This was, however, entirely inadequate in London where gangs of robbers and highwaymen were endemic. Moreover, the watchmen, known as “Charleys”, were generally of low calibre and frequently mocked. In response, a new court was established in Bow Street, Covent Garden in 1729 and was given a stipendiary magistrate. By 1749 the then magistrate Henry Fielding, novelist and reforming JP, employed a small body of full-time thief-takers knows as the “Bow Street Runners”. Initially they were only eight in number.
However, in 1753, after five murders were committed in London in one week, Fielding was given £200 with a promise of another £400 to put an end to the gang responsible. Within a few weeks he had secured its dispersal and the arrest of its leaders. The Runners were quickly transformed into a professional force and after Fielding’s retirement they were continued by his blind half-brother, Sir John Fielding known as the “Blind Beak of Bow Street” who succeeded him as the stipendiary magistrate. As a professional force they patrolled London, rooted out murderers and thieves, and their services were sufficiently highly regarded as to be sought as far away as Bristol and Portsmouth.
Apart from this striking example of the early though primitive origins of a police force, however, this part of the book deals with the amateur tradition of justices of the peace, clerical magistrates, trading justices and the control of magistrates. Another innovation was that whereas early in the century magistrates generally conducted their business in their own homes, in Bow Street Sir Thomas de Veil and the Fielding brothers arranged a summary court similar to its modern counterpart. Other metropolitan magistrates gradually followed their lead.
Part 3 of the book deals with Justice. This includes proceedings before magistrates and the metropolitan penal regime. Among other things, arrest and search warrants, preliminary examination, confessions, depositions, committal, bail and options for prosecution are all examined. Chapter 15 deals at length with private prosecutions including the appeal of murder and Chapter 16 goes into great detail on trial on indictment.
Throughout the book criminal trials are introduced to illustrate Durston’s narrative, many of them from the Old Bailey Sessions Papers including some from trials in which the intrepid William Garrow appeared. Chapter 16 has a section entitled “Change During the Course of the Century” in which it is shown that in criminal trials on indictment in the 1790s major rules of evidence had emerged and trial procedure was far more precise, and less informal, than had been the situation at the start of the century. Both judges and juries had become more “passive” than had previously been the case.
This did not just happen, however, and the role of Garrow was crucial in giving birth to prisoners’ rights, adversary trial by counsel and rules of evidence all of which spread to many parts of the world, not least the United States. Indeed, the variegated aspects of the criminal law act as a corrective to the view of some historians at pains to stress the social harmony of the period.
Gregory Durston is to be congratulated on producing a monumental work on crime and justice in eighteenth century London – an important period in the development of English legal and social history. The book of 668 pages covers far too much ground to be dealt with in a review but some sense of the treasures it contains have been indicated. The author concludes that although London’s criminal justice system was somewhat flawed at the time, as is often suggested by modern academics, it nevertheless compared reasonably favourably with its continental counterparts where torture was routinely used and trials were held in secret. And the English system, he argues, has to be understood against its backdrop of harsh living conditions. Acceptance of inhuman treatment was probably higher than it would be today. This produced a corresponding “robustness” that to modern eyes frequently appears as callousness. Nevertheless, as the century progressed both society and its criminal justice system became gentler, as part of a process accelerated by the spread of enlightenment ideas.