What was the most influential period in the development of the criminal law and the associated institutions.

Late eighteenth and early nineteenth century law consisted of mostly medieval customs and beliefs that had been mixed with many amendments causing problems with clarity. Due to the societal changes and the incoherence of the law, rationalisation of the law was required. The ‘old’ system was based on a localised and personalised version of justice due to the communal nature of society at the time. In most cases the victim would know the person who had committed the crime, and it was left to the victim to investigate and prosecute the accused. Further complications came as it was also left to the victim to incur the initial expense of any proceedings. Thus, often justice wasn’t found as the costs could not be met by many. This problem was recognised by many, including influential people and thinkers at the time, such as the Fielding Brothers who argued that the prosecution be taken out of the hands of the victim and therefore a shift from the focus being all in the trial to the actual detection and prevention of crime. This system reflects the view that a crime is a violation of one person by another, rather than that of violation of the criminal law. Due to this, a person’s social status often played an important part in the outcome of a trial, especially when there was a different standing between the two parties. Although the issue of finances was not remedied until after the period being looked at, measures were taken to try and help. In 1770 and 1818, Reimbursements of Prosecution Acts were passed with the aim of awarding costs to victim-prosecutors from the state, and both these acts were enshrined in the Criminal Justice Act 1826.

Although never actually applied fully, one more topic comes under the process of rationalisation. The idea of Codification of the criminal law has long been in debate and is still ongoing even now. This principle entails the full collection and integration of the common law and statutes relevant to criminal law. The aims of codification are to make the law more accessible, comprehensive and uniform for all. Despite many advantages to this, the disadvantages have meant that it has never happened, largely due to time and cost needs. Furthermore, some see this as making the law too rigid, removing the limited scope for judicial ‘creativity’. This topic was first dealt with following the French Revolution in the mid eighteenth century, and between 1833 and 1849, thirteen reports had been created by the law commission, with two propositions rejected. Many objections for codification came from the legal profession itself. Why do lawyers want the law to be simple, even for the common layman?

As the changes to everyday life in this period occurred in a relatively short period of time, it is also apparent that the law (in many circumstances) was playing ‘catch up’ to the desires of the masses. The worries of a mass revolution, such as that in France, were ever prominent in the upper classes minds, and following enfranchisement also the new bourgeoisie, causing many moral panics about these groups of ‘mobs’ developing in urban areas. These fears are represented by a quote from a London newspaper:

“…there is no possibility of stirring from our habitations after dark, without the hazard of a fractured skull”

It is apparent that an almost unwritten code was produced by the lower classes, and this often differed from that of actual law. This ‘social’ crime is seen by many historians as a result of resistance to the many changes occurring during this time and the crime figures shows that the system was not working. Hearings about issues that differed in opinion between classes were often frequented by crowds, often resulting in attacks in which the military would have to restore order, as there was no police force yet (discussed later). The powerful elite did not know what to do and so reacted in the only way those they new how, by increasing the number of capital offences, believing that the threat of physical harm would be a good deterrent. In 1723 the ‘Black Act’ introduced fifty more offences to which execution would apply and this included not just murderers, rapists and forgers but also many petty crimes such as poaching and fishing on private land. By 1800, over 200 offences could result in the death penalty. Lea tells us that between 1774 and 1776, records show that people were even hung for ‘destroying silk on a loom’ and swearing a false oath7. However, this increase in the ‘Bloody Code’ had the opposite effect to that which it was intended.

Executions were more than just the hanging of someone who was believed (by those in power) to have committed a serious crime, it was also the opportunity for a demonstration of power, aiming to encourage obedience of the law. Executions were a spectacle to which everyone was invited to see, and often encouraged to participate with excitement. People would give speeches, sing and look on with amazement and awe. In London, the condemned were forced to take a three mile walk from the prison in Newgate to the gallows at Tyburn, where church bells would ring along the route, only to end up on a raised platform, humiliated in front of many onlookers. To the ruling classes, this procession and ceremony was as important as the execution itself, a symbolism of power – the condemned are not just killed, but humiliated and shamed. However, this should not be viewed as the harshness and brutality being carried out by evil men on a power trip caused by fear. This was the only way that these men understood how to deal with people who had chosen to break the law set by the King, and the elite still had a strong symbolic link and loyalty to the monarch. This humiliation was made worse in 1752 with the introduction of the “Act for the Better Preventing of Horrid Crimes of Murder” which allowed the Surgeons Guild to commandeer the bodies of the executed for whatever they saw fit, including dissection and research.  

As mentioned, this caused many problems and conviction rates decreased. The ceremonial part of the execution gave rise to an opportunity for further public disorder and also assisted the organisation for opposition to this method of dealing with offenders. In 1749, fourteen sailors were condemned to death and during the ‘Penlez Riots’, several thousand protestors took part in demonstrations, only being stopped by the promise that the body would not be taken for medical purposes. As well as public opposition, it became apparent that juries would be loathed to convict a person that may carry the death sentence if they believed this was too harsh. Public opinion was changing and death was no longer acceptable to many, with growing respect for the dead themselves. Those who saw the problems tried for change and in 1755 Henry Fielding, a magistrate, proposed that the procession should be stopped and that the executions should take place in Newgate itself. Despite this attempt at change being rejected, in 1783 the authorities announced that the procession will be stopped as it was becoming increasingly disruptive “to traffic and business”, and thus avoiding the subject of opposition. However, the hangings were still held publicly outside the walls until 1868.

A new method of dealing with punishment was needed, as the death penalty was increasingly problematic and whippings (and other such punishments) were seen as not harsh enough. The answer came in 1718 with the introduction of transportation. This was useful to the authorities as not only was it viewed as an intermediary sentence, but also certain types of criminals, such as highwaymen, were beginning to gain a certain kudos and respect among the masses and execution meant martyrdom. Initially transportation was to the Americas, and following the war of independence in 1775, to Australia. The Americas were of further use as many of the magistrates in shipping ports (such as Bristol and Liverpool) were also merchants and plantation owners, and so could sentence petty criminals to hard labour in their businesses. Problems with transportation came following the War of Independence, and later, objections from Australia coupled with increasing emigration to these places anyway. This method was abolished in 1857, but new methods of punishment were beginning.

Due largely to the changing ideas from punishment to detection and rehabilitation, people began to want less drastic measures. The main pioneer of this was Robert Peel who in 1823 passed the Gaols Act while in the position of Home Secretary. This was the first piece of national legislation to deal with the many problems of the prison system, now making it a viable alternative to the more brutal methods employed previously. In 1825 Peel also aided with the passing of the Jury Act, which clarified and sorted out the many problems of the jury practice. Peel, arguably the most influential person on the modern legal system, also championed many other important acts, to which many had the aim of reducing the number of capital offences such as the Forgery Act 1830.

However, the one aspect that Peel will probably be most remembered with is the establishment of the Metropolitan Police, the first modern police force in the world. This suggestion had been dismissed in 1822 by Lord Liverpool, holding a conservative majority in parliament, but increased fears as to the rise of the working classes and Wellingtons more liberal government helped Peels case - he had already helped with the change of the Corn Laws and Tests Act which also faced great resentment. Until this point, the extent to which a policing force was in place can be argued. Previously the system had developed a little from the principles of ‘hue and cry’ and Tythings and Hundreds to a system where people were employed by communities to watch over during the night (so called ‘nightwatchmen’) and a growing field was that of ‘thief takers’. These thief takers were employed in order to track down criminals and were paid on delivery of a suspect to the magistrate. However, the development of offering rewards for the return of stolen goods led to many cases of corruption. Recognising the many problems, Sir John and Henry Fielding set up the Bow Street Runners in 1748 while acting as magistrates. These runners would be despatched to apprehend a culprit when a crime was reported and would receive there fees from the apprehension and any rewards on offer from the victim. However, this only existed in London and with minimum supervision. In 1800, a further step was taken by Patrick Colquhoun developing the Thames River Police in order to supervise the river and the surrounding property. Although these forces remained in place after the forming of the Metropolitan Police, it was not too long until they were absorbed.

In conclusion we can see that this was possibly the most influential period in the development of the criminal law and the associated institutions. A shift from punishment to the beginnings of rehabilitation took place and the many fundamental concepts of a fair system were beginning to appear to create a solid foundation for what we have now. The ideas of Justice, equality, reasonableness and the rule of law took over from a simple system of ‘you have done me a wrong, I will get my revenge’. Social and political changes gave us a shift from crime being a purely personal matter to crime being a matter for legislation and thus a breaking of codes (technically) chosen by representatives of the people as a whole. Despite many objections from those in control, the legal system was forced to change to follow the emerging ideas of the masses. The extent to which this was just a shift of control and control by new means could be argued, but it is a fact that by 1850 many more people were in control making the system more just. As democracy was developed, so must the law. With the increase in complexities of people’s everyday life, the governance of society must develop to fit in with these changes. No longer was a system of ad-hoc principles and personal law suitable to the new industrial towns and cities and regulation and detection needed to be taken out of the hands of the individual. The developments were problematic with people fearing the loss of control, however it remains that changes were acceptable and so a matter of time was required for people to get used to the forward thinking ideas. These changes also show us that not everyone can be happy with any change made, and during this period it began to be accepted that it is important to please the majority most of the time.