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The Need for a New Punishment: England’s Criminal Justice System

Note: This post is part of a series on Convict Transportation to the American colonies.

Government officials became increasingly alarmed by the rise in crime in early eighteenth century England, but its criminal justice system was woefully inadequate in stopping crime and in handling the number of criminals passing through its system.

Law Enforcement

Even though urbanization was rapidly changing the complexion of London and other English cities, law enforcement continued to function under the logic of a smaller-scale community. Cities lacked a central, organized police force due to British fears of supporting a standing army, which, it was believed, could potentially be used to curtail the rights of individuals. The creation of an official police force was over a century away. Instead, night watchmen, who were often ridiculed for their incompetence, patrolled the streets.

With the assistance of the generally ineffectual night watch, crime victims were basically responsible for apprehending and convicting criminal offenders themselves. Few people pursued prosecuting criminals, since bringing an offender to trial was difficult and expensive. The victim of a crime was expected to obtain an arrest warrant, summon the constable, and gather friends and acquaintances to help find and arrest the criminal. Once the victim caught the criminal, he or she was responsible for covering the costs of prosecution; this expense could be considerable, especially since anyone in the legal system had bought his position and therefore had to be paid for his services. Furthermore, if the offender belonged to a gang, the threat of retaliation by a fellow member would be enough to discourage victims from pursuing legal action. The difficulty of bringing criminals to trial meant that most crime went unprosecuted.

Faced with a growing crime rate and little official means of policing its streets, the British government began passing laws to add and reclassify more offenses, even the most petty, as capital in an attempt to dissuade potential criminals from committing crimes. More and more criminals who committed even the most meager of crimes could potentially face execution. Given the sharp rise in property crime, parliament focused especially on protecting property owners, passing such laws as the Black Act of 1723, which created over 50 new capital offenses. These steps led to the creation of what would become known as the Bloody Code, with roughly 160 offenses punishable by death by 1765.

Sentencing Laws

Outdated sentencing laws also contributed to the failure of the criminal justice system, since a convicted felon could either be sent back out on the streets with only a minor punishment or be put to death, and oftentimes neither punishment seemed to match the severity of the crime. First-time offenders of minor infractions could generally avoid punishment under “Benefit of Clergy” by reading (or reciting) the first verse of the 51st psalm, beginning “Have mercy upon me, O God, according to thy loving kindness.” Benefit of clergy was a relic from medieval times, when those who could read were judged to be from the holy orders and therefore technically fell outside the jurisdiction of the secular courts. This sentencing loophole, however, was often misused. Even illiterate criminals memorized the verse in case they were ever called upon to recite it in court, and most judges overlooked the fact that they could not read. The formality of reciting scripture to avoid punishment was ended in 1706 with the passage of an act that formerly recognized this farce. The outcome of claiming benefit of clergy was kept in place, however, because it helped to counteract the harsh sentence of death called for by the criminal code.

Those who received benefit of clergy were branded on the thumb, usually with a “T” for theft, although the temperature of the branding iron could be adjusted according to the circumstance of the crime or size of the bribe given to the person carrying out the sentence. Second-time offenders, however, could be executed for their crime. Luckily for some, judges and juries had great latitude in handing out sentences and could reduce the severity of the crime that was committed in order to avoid a virtual state-sanctioned blood bath at the hanging tree. But this latitude also gave an arbitrary appearance to the criminal justice system, since some criminals could be let off with little punishment and others could be hanged for committing basically the same crime.

Much like today, England struggled with the question of how to turn criminals into productive citizens. People worried that when petty thieves and debtors came into contact with professional criminals in jail, there was a danger of turning them into more hardened criminals. Sentencing criminals to long-term stays in a prison to atone for their crimes and receive rehabilitation, as we do today, was a concept that had not yet been considered. Crime in England seemed to be getting out of control, yet current laws and punishments did not seem to have any effect on reducing it. Something had to be done.

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Learn More About Convict Transportation

Learn more about convict transportation to colonial America by reading my book, Bound with an Iron Chain: The Untold Story of How the British Transported 50,000 Convicts to Colonial America. Paperback ($16.99) and Kindle ($4.99).

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Most people know that England shipped thousands of convicts to Australia, but few are aware that colonial America was the original destination for Britain’s unwanted criminals. In the 18th century, thousands of British convicts were separated from their families, chained together in the hold of a ship, and carried off to America, sometimes for the theft of a mere handkerchief.

What happened to these convicts once they arrived in America? Did they prosper in an environment of unlimited opportunity, or were they ostracized by the other colonists? Anthony Vaver tells the stories of the petty thieves and professional criminals who were punished by being sent across the ocean to work on plantations. In bringing to life this forgotten chapter in American history, he challenges the way we think about immigration to early America.

The book also includes an appendix with helpful tips for researching individual convicts who were transported to America.

Visit Pickpocket Publishing for more details.

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