1. Interpretations of the Gordon Riots
In a letter of 8 June 1780, Susan Burney writes to her friend Jane:
The Eveg. before they had burnt down a Chapel in Moor Fields, & several poor Catholic's Houses - However we were to have some of this horrid work before our own Eyes - for very shortly after my Father &c return'd home [...] we heard violent shouts & huzza's from Leicester Fields - & William who went to see what was the matter return'd to tell us the populace had broke in to Sir Geo: Saville's House were then emptying it of its furniture which having piled up in the midst of the square, they forced Sir George's servant to bring them a candle to set fire to it - They would doubtless have set the House itself on fire had not the Horse & Foot Guards prevented them - since this time it has been full of soldiers to prevent it from being pulled to the Ground, wch. the Rioters have since attempted to do - the windows & even window Frames are however almost all demolished, & it cuts a terrible figure. I was terrified & shocked extremely at the rage, & licence efrenée [sic] of the Mob - & all the horrors wch. followed this Evenings. (Burney Letters 2000)1
Whereas Susan Burney gives a first-hand account without probing into the crowds' hidden springs of violence, to Horace Walpole, writing to H. Mann on 14 June 1780, the riots seemed the outcome of a
sudden fury, and in many places the act of few. In other lights it looks like plan and deep premeditation. Whether it will ever be unravelled, I know not; or whether, like the history of dark ages, falsehood will become history, and then distant periods conjecture that we have transmitted very blundered relations: but, when I know so little of what has passed before my own eyes, I shall not guess how posterity will form their opinions. (1866: 401)
Almost ninety years later Charles Dickens, in the Author's Preface of 1868 to Barnaby Rudge: A Tale of the Riots of 'Eighty', speaks in a more general manner about "those shameful tumults, while they reflect indelible disgrace upon the time in which the occurred, [...] teach a good lesson." (1991: xxiv) Dickens's lessons for the mid-Victorian times was the emphasis, according to Scott Dransfield, on the 'insane' impulses in the yet undomesticated social body, "pathologies on the domestic level that bear socially destructive potential", creating "a type of 'otherness' that can then be re-inscribed into a middle-class political process featuring an active and interventionist moral management of the social body." (1998: 83)
Walpole's 'blundered relations' have in the meantime been untangled to a certain extent. The violent reactions of the crowds after the Commons' refusal to debate the petition for the repeal of the so-called Catholics Relief Act of 17782 turned, according to McLynn, into a "broad river of social protest into which the small previously damned-up streams of strikes, riots and industrial sabotage flowed." (1989: 234) Thus the riots seem to have been less a manifestation of religious fanaticism than "a revolution manquée [...] they quickly developed into an assault on symbols of elite authority: prisons, banks, toll-gates, the houses of judges." (1989: 238; Rudé 1974; Linebaugh 1992; Kampmann 2001; Böker 2002)
First-hand observations, emphasizing religious fanaticism and/or political conspiracy, and hindsight historical interpretations arrive at different conclusions, either based on a variety of empirical data immediately available or resulting from a more distanced view. There is, however, one source that has never been thoroughly enough investigated, the published reports of the mass trials. According to Sir John Hawkins (Chairman of the Quarter and General Sessions of the Peace and Oyer and Terminer for the County of Middlesex in September 1780) there were "but few of those who were found active in the late daring Outrages, that have not either satisfied the Justice of the Law, or experienced that Clemency, which, in all favourable Cases, his Majesty is disposed to extend." (1992: 432) Nevertheless, the hegemony of the governing elite was severely challenged during the Gordon Riots, which was, coincidentally, also the time of the American war. Thus it remains to be seen if the trial reports represent, in view of the elite's growing political and constitutional concerns, transformations in mentality - first of all, in respect of a growing political awareness, but secondly also in respect to concepts of fact, truth, and reality.
We have to bear in mind that the riots of June 1780 were the most severe excesses in England during the 18th and 19th centuries (Rogers: 1990), particularly so because innumerable people participated in it, either as spectators or as perpetrators of criminal acts, thus creating for magistrates and courts severe problems of evidence- and truth-finding. It is true that the older belief in the possibility of certain knowledge in legal thinking had been eroded since the end of the seventeenth century. Evidence was seen more and more as a matter of probability: the bench demanded, especially in cases of capital punishment, virtually absolute proof (Green: 280-81 and n. 43). There were "degrees[s] of credibility" (cf. Shapiro 1983, and Beattie: 235) and evidence, which had to undergo sifting and evaluation, even if given under oath, in order to get "the utmost Evidence [that] the Nature of the Fact is capable of; For the Design of the Law is to come to rigid Demonstration in Matters of Right" (Gilbert 1765, as quoted in Welsh: 14).
It was still common practice, however, to emphasise - besides the empirical reconstruction of circumstances and facts (Welsh 1992) - the concept of character, based on the depositions of character-witnesses and on first-hand impressions in court. Judge, jurymen, counsels for the crown and the defence were usually attempting, in the course of a trial, to construct plausible narratives,3 relying thereby on the defendants' and/or the witnesses' utterances on the spot - that is, in the courtroom - judging from common sense and previous personal or professional experience, without, however, sharing the philosopher's and linguist's mistrust of language no longer held to be an unmediated representation of reality (Keymer: 225ff.). Thus "character" suggested a narrative, based on common sense interpretation of metynomous signs. Language, including body and facial signs, was considered to be a straight and accurate mirror of the soul, provided it was not falsified by the rhetorical "Arts of Fallacy" (Keymer quoting Locke: 227). As W. Hawkins remarked in his Treatise on the Pleas of the Crown (1716-21): "[...] the very Speech, Gesture and Countenance, and Manner of Defense of those who are Guilty, when they speak for themselves, may often help to disclose the Truth, which probably would not so well be discovered from the artificial Defense of others speaking for them." (in Keymer: 239)
It is true that the bench and the jury were aware of the problems of wrong accusation, false swearing and perjury. However, as they had to hear a great number of cases - which were, furthermore, grouped together in a haphazard and relatively 'unprofessional' way - they had not choice but to rely on the 'spontaneous' authentic utterances of the un-fragmented 'character', hopefully allowing them to discover the truth in and through language. The trial accounts thus represent the contemporary Englishman's unquestioned acceptance of the "rule of law" (Böker 2001), never doubting the fair administration of justice in a more fundamental way, as did the defendants of the treason trials of 1794 (Houswitschka 2003). Thus it is only now and then that we catch a glimpse of the undercurrents of what Peter Linebaugh (1992) has called "the crisis of thanatocracy in the era of Revolution" between 1776 and 1800.
2. The Riots
The legal basis for the administration was the 1715 Riot Act, originally devised as a weapon to answer the political challenges of Jacobitism, and, together with the Waltham Black Act, "one of the two main pillars of the [Bloody] Code." (McLynn: 218) According to Blackstone, riots were considered "offences against the public peace, the conservation of which was intrusted to the king and his officers", saying
that if any twelve persons are unlawfully assembled to the disturbance of the peace, and any one justice of the peace, sheriff, under sheriff, or mayor of a town, shall think proper to command them by proclamation to disperse, if they contemn his orders and continue together for one hour afterwards, such contempt shall be felony without benefit of clergy. [...] And [...] if any persons, so riotously assembled, begin even before proclamation to pull down any church, chapel, meeting-house, dwelling-house, or out-houses, they shall be felons without benefit of clergy. (Blackstone: IV, 142, 143)4
Protests had begun on 2 June 1780 with a march of the petitioners from St. George's Fields, Southwark, to the Houses of Parliament, led by the Scottish protestant MP Lord George Gordon who objected to the end of religious discrimination against Catholics. The mass of demonstrators soon got out of hand. Violence and looting broke out; members of the Lords were insulted and pushed about, pelted with mud, and poorly treated. On the weekend of 3 and 4 June some Roman Catholic chapels were set on fire, but the administration still remained passive. It was only on 7 June that George III issued a proclamation to restore public safety through military force.5 The Riot Act was read by Justice Hyde, and the Horse Guards were ordered to disperse the 'mob', even with the help of fire arms. In answer to this, the crowd pulled down Justice Hyde's house; the same happened with Sir John Fielding's magistrate's house in Bow Street, the Earl of Mansfield's house, and with Newgate Gaol and other prisons. On "Black Wednesday" (Walpole: VIII, 402) the crowd ransacked - amongst many other locations - the distiller's Thomas Langdale's premises, igniting the 120,000 gallons of gin, some of them dying as the result of drinking the non-rectified spirits.6 By Thursday 8 June there were about 10,000 troops in London; the Attorney-General decided that any riotous assembly could be dispersed - without a special reading of the Riot Act. By Friday 9 June the government had the situation under control.
Prints depicting the destruction of Newgate and other gaols suggest large crowds;7 an anonymous informer in a memorandum for Lord North's secretary was of the opinion that the active rioters numbered about several thousands.8 There were recognized 'captains', sometimes armed with swords or even riding horses, and quite a number of the "active" entered the houses and pulled them down (Rudé: 279). Arrest of the rioters began immediately after the first outburst of violence on 2 June (Rudé: 271). After order had been restored, more were apprehended by spectators, neighbours, constables or informers eager to obtain the official reward of £50 (Holcroft: 25). Although more than 450 persons had been apprehended, close examination of the Sessions Minute Books, the Calendars of Indictments and the Commitment Books shows that only 160 of them appeared for trial at the Old Bailey, and even less were punished for breaches of law (Rudé: 275, n. 29).
3. The Principle of Exemplary Punishment
The ratio of the active persons and those committed to trial seems to be a highly disproportionate one. This fact has never been looked into. The disproportion was certainly due to a general agreement amongst the administration and the public at large about the notion of exemplary punishment and judicial discretion in view of the dominance of capital punishment (Beattie: 231; Hay: 1993). Writers of all sorts had for a long time presented characters that were "chosen [...] as an example to you all, and as a Warning to the lazy indifferent Christian [...] Every age, and every quarter hath some Monument or another set-up, with this kind of Inscription, Look upon me, and learn to fear God [...]. There are Pillars of Salt set up every where for our remembrance." (quot. in Böker 2001: 34). Henry Fielding made use of the concept of exemplarity too, when in An Enquiry into the Late Increase of Robbers (1751) he put forward the opinion that "tho' Mercy may appear more amiable in a Magistrate, Severity is a more wholesome Virtue." (164 f.) As the unbroken or uninterrupted "Chain of Justice" supposedly guaranteed the "Concatenation and Strength of the whole", there had to be - in matters of justice - the absolute "Danger and Certainty of Destruction" for the criminal. Fielding was of the same opinion as Sir Matthew Hale when he asked:
Now what is the principal End of all Punishment: Is it not as Lord Hale expresses it, 'to deter Men from the Breach of Laws, so that they may not offend, and so not suffer at all? And is not the inflicting of Punishment more for Example, and to prevent Evil, than to punish?' (166)
"The Terror of the Example [of punishment] is", as Fieldings pointed out, "the only Thing proposed, and one Man is sacrificed to the Preservation of Thousands," and "Examples of Justice are more merciful than the unbounded Exercise of Pity." (167). An example of justice had to be "an Object of Terror", and the "great Business" of the magistrate was "to raise Terror", as was shown in Fielding's own unfair handling of Bosavern Penlez, accused of taking part in a riot and pulling down of a bawdy house in the Strand in 1749.9 Of the Earl of Mansfield, Chief Justice of the Court of King's Bench from 1756 to 1788, Lord Campbell remarked: "There was no complaint of any improper conviction before him, but he did not allow the guilty much chance of escaping, and, for the sake of examples, he was somewhat severe in the punishments he inflicted." (Oldham: 109) In the case of the Gordon Riots, the doctrine of exemplary punishment meant, however, that only a small fraction of the "active" rioters were actually put to trial, and even less had to suffer the exemplary death by hanging.10 There were no complaints, though, about this uneven distribution of justice.
4. The Proceedings and their Documentary Status
In his study of eighteenth-century popular protests, George Rudé drew on judicial and financial documents of various record offices and archives in order to "identify the rioters and their victims [and] to throw fresh light on the pattern of the riots and on the motives that prompted their participants." (269) He also made use of the Whole Proceedings of the King's Commissions (WP) and The Proceedings on the King's Special Commission (SC). In order to assess the public impact of the riots and the trials and to analyse the problems of fact- and evidence-finding, the following analysis will primarily look into these Proceedings.11
Criminal jurisdiction in the metropolitan area of the City of London and Middlesex (in which the Gordon Riots occurred) was exercised by three different commissions. Apart from these regular commissions of peace, gaol delivery of Newgate, and oyer and terminer (WP) there could be special oyer and terminer commissions for London and Middlesex in cases of urgency and importance (SC),12 a fact explaining the existence of two different kinds of Sessions papers documenting the trials under discussion.
The first trial took place on Wednesday, 10 May 1780, at Justice Hall in the Old Bailey, this being one of the more spectacular cases - namely, the pulling down of Sir John Fielding's magistrate's house in Bow Street.13 The next cases were heard more than a month later before the King's Special Commission for the County of Surrey at St. Margaret's Hall, from Monday, 10 Juny to Tuesday, 18 Juny 1780. It was only during the next regular session at the Old Bailey,14 beginning on 28 June 1780, that the remainder of the cases were heard, opening with the spectacular trial of the apothecary Henry John Maskall, accused of having been a ringleader in the destruction of the Earl of Mansfield's house and library.15
Both kinds of Proceedings were issued in the same way as Bibles, history-books, or longer works of fiction, namely as number publications, short and cheap enough for the less wealthy to be able to buy them within days of the trials (in M. Gurney's bookshop near Temple Bar) for sixpence each, making them "an early species of periodical journalism, purveying a diet of true-life crime stories for the interest and amusement of a non-lawyer readership."16 As the taste of the audience seems to have guided the selection of the cases, the more sensational trials always received more thorough treatment (Langbein: 16).
The editors of the separate part-issues of the WP assigned numbers to each accused, so that the defendants (rather than the cases) came to be numbered; whereas the trial accounts of the SC have no identification numbers. These, instead, are often broken off in the middle, spilling over into the next part-issue (in both cases there are 20 pages); leaving the reader in suspense about the outcome in order - obviously to make him/her eager to buy the next number. This spilling over is, however, partially due to the fact that the reports in the case of SC are much longer and more detailed than those in WP.
There were 56 defendants on trial before the Special Commission, and these trials (for the length of seven days) occupied 167 pages. Not counting three very short cases (when the counsel for the Crown did not offer any evidence), the publisher reserved nearly seven pages for each of the remaining 24 cases. As Beattie remarks, in 1775 and 1781, the average normal case occupied just over eight-tenths of a page of the Sessions Papers (260, n. 17).17 Even the (Gordon) trials as reported in the Whole Proceedings occupied more space - and they obviously took more time to be decided in court. At one of the trials the prisoner remarked: "I could call twenty witnesses; I would not wish to give the court so much trouble." The Court's answer: "It is no trouble to the court or jury, call as many witnesses as will do you good."18 As to trials nos. 291.292 (Fielding's house), the report is more than five pages long; the Maskall Trial (no. 300; the Earl of Mansfield's house) is reported on 21 pages (the entire no. VI/II). The report for no. 324 (Akerman's house [Newgate]) is four pages; for no. 325 (Hancock; the same) seven pages.
It is true that the trials at law, the arguments of counsel, and the cross-examinations were taken down in shorthand by the authorized trial recorder Joseph Gurney or one of his reporters, and the transcribed reports were subsequently "published by authority."19 However, the non-lawyer was certainly more interested to know the factual details than to learn about matters of procedure and legal doctrine. This is why the courtroom interaction (cf. King: part 3), the judge's summing up, his instructions to the jury, the deliberations of the jurors,20 or the jury's rationale for a verdict and for the post-verdict proceedings for the appealing of death-sentences are all summarily omitted.21 In addition, the activities of lawyers seem to be under-reported, although some space is devoted to questions of prosecution and defence counsels (Langbein: 126; Beattie: 226f.).22 Only now and then there is some short information about this or that person condemned to death by hanging being "humbly recommended by the Jury to his Majesty's mercy", sometimes "on account of his youth."23 As the Old Bailey treated the Sessions papers as authoritative, reporters were obliged not to falsify; although deletions and even 'squib' reports that supply only a minimal record were not uncommon (Langbein: 14, 16, 23-24). Why the official accounts did not include Lord Loughborough's charge to the grand jury at the opening of the Surrey Sessions on 10 July, remains a question: Loughborough declared that the riots had resulted from an illegale petitioning of the Protestant Association and its attempt to overaw the legislature (Rogers: 49). And in addition, we do not learn anything about the Crown counsels' refuse to discharge prisoners found Not Guilty: som incriminating evidence, they argued, might still emerge from other trials (Rogers: 49). However, it is not only the reporters' redaction of the hearings at court, but also the problems resulting from the predominance of character witnesses and false evidence that simultaneously cast doubts on the documents' reliability.
5. Judges and Jurymen
The names of the judges as well as those of the separately sworn jurymen are given on the front page of WP; we find, because of the great number of cases, not three conventional groups of jurymen, but four panels (the First and the Second London Juries; the First and the Second Middlesex Juries). Neither the jurymen's occupations or places of residence are given, nor the names of the foremen.24 Trial dates are lacking, except for the first day of the Sessions; we do not know how long one jury sat.25 Only in connection with the trial of Maskall do we learn that the defendant had challenged two members of the original jury; the final panel is given at the beginning of the record.26 At the end of each report we find the name of the presiding judge as well as the identification of the jury and the verdict.
This is different in SC. Apart from the names of members of the Grand Jury there is, at the beginning of each Sessions day, a list of jurymen (petit jury), including their occupations and places of residence.27 There are altogether 46 jurymen for seven days: four of them serving on four days (a yeoman, a tanner, a malster and a gentleman), another four on three days, seventeen on two days and 21 only on one day,28 most of them artisans, small shopkeepers, farmers and the like. We do not learn anything about non-attendance or premature departure of the jurymen; this was a severe problem, although there were fines.29
The judges for the special commission were Alexander Loughborough (Wedderburn),30 Chief Justice the Court of Common Pleas; Henry Gould, Justice of the same court; James Eyre of the Court of Exchequer; and Francis Buller of the Court of King's Bench. We do not know who heard which case or if criminal adjudication was collegial through joining together in the conduct of a trial.31
As to the Old Bailey bench, the Mayor of London was ex officio chief justice of the trials at Justice Hall, although he did not actively take part in the judicial proceedings. The judges were Edward Willes (King's Bench), Richard Perryn (Court of Exchequer), William Ashhurst (Court of King's Bench), George Nares (Common Pleas), and Lord Chief Baron Skynner (King's Counsel). They usually heard two cases before another colleague took over, whereas the Jury seems to have sat for a longer period of time.
Although there was a vast division of class between the judges, the jurymen, the witnesses and the defendants, there does not seem to have been a observable class-biased finding of facts and verdicts in the individual cases. It was rather the predominance of concepts such as that of the 'rule of law' and of 'equality before the law' that were invoked in order to preserve the cultural hegemony of the ruling class, meting out exemplary rather than certain punishments under the cover of mercy and pardon:
[...] deterrence was not the primary purpose of the elite. What they aimed for, above all, was an ordered hierarchy of authority, deference, and obedience. The rulers of eighteenth-century England valued the discretion and uncertainty inherent in the Bloody Code. They did not want every single offence visited with a certain punishment. Their principal aim was social control (McLynn: 258).
6. The Grouping of Cases and the Scope of the Trials
The trials for pulling down of Fielding's and the Earl of Mansfield's houses were thus of symbolic importance for the administration of justice in a deferential society. Without looking into the Sessions Minute Book, we cannot be sure whether these cases were tried in the order they are arranged or edited in the Sessions Papers. Although there are initial numbers for every defendant at the head of each report, there might have been some editorial tampering with the original sequence (cf. Langbein: 25-26).
Be that as it may: although there were pre-trial investigations,32 there was no briefing of the judges who were ignorant of the cases they were going to hear.33 In addition, as cases were narrowed procedurally to the determination of particular issues, there was no systematic grouping of cases that might have been heard in conjunction.34 Thus the demolition of Murphy's public-house in Golden Lane was tried, because of the different defendants, before the Perryn (no. 305), Ashhurst (no. 313, 320), Nares (no. 330, 332), Skynner (375), and the Recorder of London (no. 378).35 That is to say, the different judges were not only confronted with a number of separate cases, but this happened without their able to (re-)collect every bit of information available (about the dwelling-house in question, its shape, location, interior, neighbourhood, the number of spectators and those more active, the instruments of destruction etc.). It is only in one case that Gurney notes what might have been common practice: "The Jury were referred to the evidence on the former trial for the prisoner's character." (WP 528). Such cross-references, including pre-trial examinations, might have been the rule.
Trials, as we see them in Gurney's reports, were usually divided into three different parts: at the beginning, the "prisoner" is examined by the Court; after that he is asked to speak in his or her own defence; and in the end he is allowed to call his own witnesses, either speaking on matters of fact or for his or her 'good' character. First witnesses might have been of special importance for the prosecution, although we are not able to detect any effort at a systematic investigation into similar cases connected with the pulling-down of a specific dwelling-house: thus in the case of Murphy's premises, and the owner himself appeared twice as first witness (although he was present only at the beginning of the destruction), but then there were also a peruke maker, a keeper of a public house and a breeches maker.
Whereas at the Old Bailey there were, except for no. 389-391, 420-422 and 428-431, seldom more than two persons at the bar, this was different at St. Margaret's Hall. On Monday, 10 July, there were six trials with one and two defendants, respectively; but on Wednesday, 12 July (the second day), there were only two trials with eight and one defendants, respectively; and on Thursday, 13 July, there were eleven and then four people at the bar. In addition, this court obviously had more time to hear the witnesses, the cross-examinations and the defendants delivering their versions of the events.36
7. Factual and Character Evidence: The Witnesses
As Blackstone remarks, "evidence signifies that which demonstrates, makes clear, or ascertains the truth of the very fact or point in issue, either on the one side or on the other; and no evidence ought to be admitted to any other point." The main kind of evidence at this time was that of "parol evidence, or witnesses." (III, 367, 369; "positive evidence", see Welsh: 29) As a rule, witnesses of the victim of an offence as well as those of the defendant presented the facts at issue orally, the judge acting meanwhile as examiner and cross-examiner, and in theory, as the defendant's counsel, protecting him/her against illegal procedure. The defendant (and the jury, too) could ask questions simply "by blurting them out: procedure was in this regard rather chaotic." (Beattie: 222).
"The utmost evidence" in the case of W. Macdonald, who was indicted for taking part in the pulling down of J. Lebarty's dwelling-house, was the five eye-witnesses. The first one, a neighbouring barber, had been on the spot at the time in question, seen the defendant, heard him crying "Down with Popery" with a bottle in his hand, from which he offered drink to others. He watched him knocking at Lebarty's door, going inside with others, breaking the shutters, throwing furniture out of the windows, and carrying candles (open fire) into the house. We may doubt that the witnesses delivered this in the form of a continual narrative; it might well be that it was the reporter who put the results of the bench's questions and the witness' answers into a consecutive order. Nevertheless, the evidence is clearly shaped as an eye-witness account of a spectator on the street, who at some time or other even helped another neighbour who was threatened by the mob and thus getting even nearer to the defendant. However, his point of view was always restricted to that of an observer outside the house, watching the defendant either in front of Lebarty's premises or at an open window. When the defendant asked him "[w]hether you saw me put a hand to any part of the property of John Lebarty" (WP 458), the missing inquit-formula of the elliptical sentence points to the reporter's style of compression, which might nevertheless present what was actually said. After the witness' answer in the affirmative, the next witness Elisabeth Jolly, living opposite Lebarty, told her story in a similar way, offering some corroborative evidence. Elizabeth is asked whether she was "positive that the prisoner is the man [she] saw"; whether she happened "to know where he got that candle" (it had been mentioned before by the barber, but she didn't know); how she came "to remark the prisoner, did you see any thing particular in him" and "did you see his arm in the situation" (throwing furniture out of the window): she answered in the affirmative, adding that his fellows had shouted "Well done [...] though you are lame you work very well" (WP 458; a footnote says "the prisoner's left arm was in a sling"). The next two witnesses did not see the prisoner take part in the havoc, and in the end Lebarty is told to inform the Jury what state the house was in after the demolition. The prisoner spoke then as his own defence; there was no confession of guilt, but we can infer from what he said that the witnesses might have said the truth. Macdonald - a former soldier discharged because of his bad arm - had obviously not been able to pay for a counsel of the defence; and in addition, awaiting the trial in Clerkenwell prison, "nobody has been admitted to see me there; therefore I could not so much as send to my regiment for my character." (WP 459). His indirect confession of guilt, the obvious lack of character witnesses and his not being able to pay for a counsel might have been the reasons for the death sentence.
In another trial, before a different judge, but the same jury, G. Turner was indicted for the same felony. The first witness was a neighbour of Lebarty's, a hatter, who was a headborough of Aldgate lower precinct, presumably a trustworthy witness. He was positive about having seen Turner, a neighbour, pulling "down the window shutters on the outside of [Lebarty's] house," afterwards taking a shirt and a grate away that he is supposed to have sold some days later; at the magistrate's court "the man he sold it to [...] said his man had broke [the grate] up and made nails of it." (WP 508) Benjamin was asked whether he was "sure that [the prisoner] is the person whom you have been speaking" of, and the prisoner himself wanted to know at what time he saw him taking the grate away and if he knew that he was a watchman in the parish of St. Catherine's, so a trustworthy person, too. There were no other corroborative witnesses and Lebarty himself did not know the defendant. The date he got information from Benjamin about the defendants' actions (obviously four or five days later) seemed to be of special importance for the judge. Although Lebarty did not know that Turner was a watchman in the parish (Benjamin had said that he had been brought in "as a watchman, about three days after"), Turner's vocation and his alibi ("I was ordered on the watch at nine o'clock, and did not come home till five in the morning. I was stationed half a mile from the place where this happened"; WP 509) spoke in favour of the defendant, who had no other witnesses for his character. In spite of Benjamin's "first hand observations", his evidence seemed to be inconclusive, and some 'facts' were based on mere hearsay (juries were reluctant to convict upon the testimony of a single witness: SC 10). Thus the verdict was "Not Guilty".
But in the case of Joseph and Robert Lovell, indicted for pulling down the dwelling-house of Thomas Connolly, there were two witnesses, but only one of them had seen both defendants demolish the house. In his own defence Joseph remarked, "I know nothing of these men", whereas his brother Robert said that he was "as innocent of it as the holy angels above" (SC 4). In the end one of the Jury expressly asked the sitting judge "whether it is not necessary that there should be two witnesses against a prisoner to authorise to convict him?" (SC 5). The judge's answer: "In point of law, certainly it is not necessary." Although we do not learn anything about the judge's summing up, the directions to the jury do not seem to have been in favour of the defendants, not the character witnesses of any weight: the verdict was "Guilty Death".
This is all the more astonishing as Robert Lovell tried to cast doubt on the credibility of the persecution witness. There had been a royal proclamation offering a reward for the apprehension of rioters, and Lovell remarked: "They do it for the lucration of money; because the magistrates give so much reward, they are false witnesses: they get their living by rapping, by swearing away mens lives! They will swear black is white! Give them a little money, and they will swear the greatest thief off. They will swear against father and mother for money." (SC 4) These remarks are obviously given verbatim and in full length, as they backfired on him. The first witness tells the court that the information for the apprehension of the Lovell brothers was given before the proclamation and that he did not expect any reward; the other one had been bound over to give evidence and he did it "out of duty to my king and country, and to the neighbourhood" (SC 5) - quite laudable motives, answering to the interests of the governing elite. Again, there were no character witnesses for the Lovell brothers, and that did not speak in their favour.
8. The Counsel for the Defence
As Langbein remarks: "Only a small fraction of eighteenth-century criminal trials was genuinely contested inquiries into guilt or innocence. In most cases the accused had been caught in the act or otherwise possessed no credible defence." (41) As has been pointed out, defendants committed to trial by a magistrate's court were not able to learn the exact nature of the charge or to look into the depositions of the witnesses. Criminal trials, in addition, were based on the no-defence-counsel rule: defendants had to speak entirely for themselves (Green: 135; Oldham: 113; Beattie: 221). This was based on the idea that "the best indication of innocence was provided by the defendant's immediate and unrehearsed responses to the evidence as it was presented."37 The reason for this lay in the loose administration of the Bloody Code, based on the principle of exemplary punishment, but allowing judge and jury powers of discretion in reducing a capital to a non-capital crime or reporting to the king for mercy and pardon. Thus it was of utmost importance for judge and jury to learn as much as possible about the defendant's character, his former life, or his present standing in the community (Beattie: 231-232). The concept of character - or the whole self - seems to have been at the centre of the trials.
At the time of the Gordon trials, this was still a dominant judicial dogma - although on the other hand, these years also saw the emergence of the counsel for the defence beginning to take a prominent role in trials. There were a great number of cases that might be used to demonstrate the importance of having a counsel at one's side, although his role was limited: he was not allowed to speak to the jury on the defendant's behalf or to probe into the facts put into evidence. His job was simply to cross-examine witnesses and to speak to rules of law (Beattie: 230 ff.). However, he might do this in a premeditated and rhetorically efficient way.
The Maskall Trial, printed in one single number, is a striking example of the pivotal role of the defence counsel. Maskell, a defendant with known radical affiliations - a former president of the pro-American London Association and a radical opponent of the Quebec Act (Rogers: 50) - was obviously considered to be a target to crush the radicals. The first witness in this trial, Richard Ingram, had presumably been present opposite to the Earl of Mansfield's house on Wednesday morning, 7 June, at half past one. His narrative seems to be precise and matter-of-fact. Maskall had, as Ingram remarks, for the first time caught his attention when he was "[s]tanding facing Lord Mansfield's door [...] with his hand upon a boy's shoulder who was putting books into the fire" (WP 379). He seemed "to encourage" the boy, though he was unable to understand the words. When Ingram, who had been absent for some while, came back, he was positioned even nearer to the defendant. He was, as he says, verbally threatened by Maskall the exact moment he was in the process of overhearing somebody calling Maskall a "seditious person". Ingram remembers Maskall having "huzza'd, and called out, No Popery" (WP 480). Later on he followed Maskall and some others who seemed to be planning attacks on other places. The judge and the counsel for the defence then, cross-examining Ingram, ask the same kind of questions: what was the time, what your distance from the defendant, what could you see, what could you hear, what were the exact words spoken etc.? One detects a slight tone of subversive irony in the counsel's questions about Ingram's family and his position in the army. The witness begins to sense the danger: "I perceive your quibble, it is by way of expositing my character." (WP 384) And counsel: "I do not mean to quibble; but it is my duty to sift your character: Have not you been a bankrupt within these few years?" There were several more direct questions, step-by-step undermining Ingram's credibility. After having gone that far, the defence counsel returned to an analysis of the moment Ingram was overhearing Maskall's conspiratorial dialogue with two other men. Ingram made a mistake saying, when asked if these men could see him, "I do not doubt." "Did you not think it rather imprudent in Mr. Maskall to hold this treasonable and diabolical conversation, when they saw you whom Mr. Maskall had before said was a spy?" (WP 385) - repeating this question several times for emphasis sake. After that he suddenly returned to the question of insolvency, challenging the witness to "disclose the truth" through a spontaneous "Speech, Gesture and Countenance" (Hawkins in Keymer: 239).
The next witness had, according to him, seen Maskall "a hundred times", but stated he had gone to the prison "to satisfy myself." Counsel: "You can have no objection to answer why you went there? [...] what was your motive for going there? [...] Then you went to be satisfied, not being satisfied before? [...] Had you any doubts? [...] Why might there be doubts if you had none?." (WP 388) The final question again tried quickly to undermine the witness's credibility and personality: "I wish to know whether you was an object of an indictment for an assault some time ago?" The counsel for the crown and the judge interfered again, as they had done before, but the defence counsel remains stubborn and subtle: "My Lord, I meant to ask whether Sir Thomas Mills had not been indicted for an assault, that he had been acquitted, and whether he had not made an affidavit which is the subject of an indictment" (WP 388).
In his defence, Maskall invoked the "humanity of the law [that] presumes every man to be innocent, and the good sense of the jury will suppose there must be some adequate inducement for the commission of a crime, when you consider that my professions supports me in affluence, and that my character has been irreproachable" (WP 390). The defence was based on the concept of character and reputation, thus on the idea of a narrative whole - on the lack of any reasonable motives on the part of the defendant and the doubts cast on the credibility of the witnesses for the prosecution. In addition, the prosecution had abstained from calling other witnesses,38 who had supposedly been with Ingram overhearing Maskall's conspirational talks, and thus Sir Mills' credibility was put even further into doubt, although the defendant was not allowed to offer (as it was considered "improper" evidence) the affidavit mentioned above. After this long speech, the witnesses for the defence - Maskall's servant, a coach-maker, a cheesemonger, the cheesemonger's wife, an attorney, a coach carver, and some others, most of them respectable householders obviously not interested in the reward of £50, testified to the defendant's good character. The last three witnesses, on the other hand, were obviously called to gradually undermine Ingram's testimony - one calling him a man "given to romance". Another remarked: "When I went to school with him he was known by the same appellation by which he has now been described, that of Lying Dick" (WP 400). Unfortunately, Ingram's witnesses who could have spoken in favour of him (he had foreseen that "such an attack would be made upon my character") were absent. We do not learn anything about the judge's summing up, but the verdict is "Not Guilty".
It is known that Lord Justice Mansfield was appalled by the persistence of perjury within the courtroom, and it was, as the Morning Chronicle had remarked three years before in a similar case, "extremely intricate and difficult to find out the truth." (Oldham: 93) With the help of counsels for the defence, jurymen and judges repeatedly became aware of contradictions between witnesses' accounts and consequently of false swearing. In the trial of R. Barkes, witness Jonathan Mann was arraigned for wilful and corrupt perjury, and the Attorney General undertook to prosecute him at the expense of the Crown; meanwhile, the defendant left the courtroom as a free man (SC 151). Trials such as these throw doubts on the quality of evidence and thus on the actual guilt of the several defendants.
9. Counsel for the Defence vs. Circumstantial Evidence
As we can see, the defence counsels seem to have - in spite of various restrictions- done a good job. However, they were unable to succeed whenever the prosecution produced some corroborating circumstantial evidence. This happened in the trial of Benjamin Bowey, a "blackmoor" who had been indicted for the pulling-down of Akerman's house and demolishing Newgate Prison and found guilty.39 The first witness, Rose Jennings (who had been visiting her brother living opposite Akerman's) was allowed to narrate in great detail the attack on Newgate. It took her some time before she mentioned the black man who was, according to her testimony, in the company of some "persons of genteeler description." The counsel's cross-examination proceeded to ascertain the number of blacks in the crowd (only one). He asked the witness about the defendant's dress during that night, his face (smooth hair and curls). In the end she had to admit, "I cannot distinguish it any other than from the weight of the impression it made on me" (WP 444). The same sort of thing happened with Ann Wood's testimony. The counsel cross-examined the witness, asking her what made her "so positive that this is the man?" - and, again, face and hair are mentioned, but, again, this seems to be inconclusive evidence. The trial took a different turn the moment Ann Lessar was sworn in and some objects are introduced serving as a kind of corroborating (or, circumstantial) evidence.
Objects introduced as circumstantial evidence were of several kinds, notably, objects reported to have been seen in the hands or the possession of a defendant and objects introduced at court as evidence. In some of the trials, objects were brought into the courtroom. Thus Samuel Barnard told the court: "We were called upon to aid and assist the constables [...]. Justice Fowler ordered us to take broomsticks and to suppress them; we took some and went in [...] met with John Hyde with this hatchet in his hand (producing it)" (SC 33-34). In another trial a soldier remarked: "I saw this flag carried about (producing it)" (SC 45).
To come back to the case of the 'blackmoor'. Anne, lodging in the same house as Bowsey, had been asked by him to mark three pair of stockings with his initials. Constable Phillips had searched the prisoner's lodging a week before, and found the stockings, a pocket book, and a handkerchief. Afterwards, Mr. Akerman identified the pocket book and the stockings as his own. There were other stockings (taken "off the prisoner's legs", from Phillips' testimony), on which the place had been cut out where Akerman's name had been woven in. After this volley of circumstantial evidence, the defendant left his defence to his counsel and his witnesses.
The first two witnesses gave him a good character (a Dr. Sandiman and a footman). However, the next two were unable to confirm Bowsey's alibi for the night in question. When, in the end, Ann Wood was able to describe Bowsey's dress in detail, the verdict was "Guilty (Death)" (WP 446). As Marika Sherwood has made clear in her analysis of the trials of black people, there were no traces of racial prejudice: "neither the reporters nor the populace were very clear - or concerned about ethnicity [...] the newspapers did not take the obvious opportunity to revile black people; there is no comment whatsoever about colour, ethnicity or stereotypes." (Sherwood 1997).40
10. Rewards, Threats and other Problems
There still remained a number of problems courts had to cope with. In view of the complaints about perjury judges were aware of problems. This is why they, on a superficial level, tried to clarify the meaning of witnesses' words. Thus the Court might have asked for explanations like in the following example: "Court. I understood you that he said positively that [...] now the gentleman asks you whether he said that positively, or whether he said he had been informed so [...]. Repeat his words as near as you can recollect them" (SC 44). Or the court might have admonished a witness to stick to the truth: "Court. I observe, you repeat again and again that they were very much in liquor; I must inform you, that you are not to come here to load one man with guilt and favor another, you are to speak the whole truth of every one" (SC 58). Or the court might ask for clarifications like the following: "Court. Do you mean to say that Quinton and Berry were no part of the mob? [...] The gentleman understood you to say that he threw it beyond the fire; was that the fact? [...] [Witness]. No, he did not throw it so far as the fire" (SC 64 and 69). The court might sometimes even offer alternative interpretations: "[Witness]. [...] he was encouraging the mob.- Court. Describe how? [...] Can you mention any expressions he made use of? [...] Or any action? [...] You say he gave ill language? [...].- [Counsel for the defence]. Was you at any time near enough to prisoner to hear what was said? [...] In truth you heard him say nothing? [...] After that he paid you some compliments?- Yes.- And then you knocked him down?" In this case, the court then offered a different interpretation: "Why might not he as well have been advising the mob to disperse according to your desire [...]?" (SC 46)
It is true that the participants in the Gordon riots were indiscriminately called 'the mob', although there were different varieties, "those quiet, and decent in appearance" George Crabbe had met near Westminster, but others "a resolute band of vile-looking fellows, ragged, dirty, and insolent, armed with clubs". (Crabbe: 78) Ignatius Sancho, an African whose shop was only a few hundred yards away from Westminster, complained about "the maddest people that the maddest times were ever plagued with [...] - the insanity of L[or]d G[eorge] G[ordon] and the worse than Negro barbarity of the populace" (Sancho: 217-220). Maskall, himself accused of having been a ringleader, called the rioters "boys, pickpockets and lowest dregs of the people." (WP 390). According to Horace Walpole, the "perpetrators of all the mischief" were "two-thirds apprentices and women." (VI, 400) Later on, Walpole was even more positive that they were "apprentices, women, a black girl, and two or three escaped convicts. [...] Not a Frenchman, not an American, appears to have had a finger in a single outrage." (VII, 414). But the trial accounts are mostly free from such language.
There might, however, have been some bias in the case of the respectable, although radical householder Maskall. When his counsel asked a witness, "Are you so fortunate to know Mr. Ingram," the counsel for the crown, sensing the undertone of irony, interfered: "Is that a proper way of putting the question?" Upon which the counsel for the prisoner asked again, "Do you know Mr. Ingram?" One of the next questions was: "Is he [Ingram] to be confided in? [...] I am asking you a general question; what was his character in the neighbourhood where you and he lived? - As man who would take people in, as they call it, if they had any dealings with him." It is only when Maskall's innocence had become more than obvious, the Court told one of his witnesses: "It is a plain question your are asked; you reason about it, instead of giving an answer; you say he might deceive, to be sure he might, so might any body; your answer must be more decisive. [...] your are called upon your oath to discredit his veracity, and to say, that he, in your belief, ought not to receive credit upon his oath". The witness' answer: "I would not believe him upon his oath." (WP 398)
On the other hand, there had been limits of truth finding the court was aware of. It had to decide who had been merely a passive spectator, who had been present just by chance or out of curiosity (cf. WP 362-63; 371; 525-25), and who had been forced to take part in the lootings (WP 428; SC 29-40). On the other hand, an important questions was who had supported the riots by "huzza'ing" (WP 427) and wearing a blue cockade, who had participated in the pulling down houses and throwing furniture into the fires, thus definitely being "active"?41 The court had to find out the exact date of information that had been laid against a defendant and if the witness might have acted in order to get the reward.42
And the court became aware of a number of threats, as in the following case: "What paper have you got there? --- A paper given me last night, that if I gave evidence against George Fletcher, two men would take me up before night and prosecute me" (SC 67). In another case we hear, "I am in danger of my life for speaking the truth. Court: You need not apprehend any danger from speaking the truth?--- I have the names of six people in my pocket, who have threatened my life. - How do you know they threatened your life? --- They have told me they would knock me on the head some night or other" (SC 68). And another witnesses says: "I have been stigmatized with going to swear twenty-three lives away. Court: Who by? --- I have been pointed at as I walked along and called after.- Who by? --- I beg not to mention it at this time, because the person may appear for the prisoner; I have been pointed at, and if I had been in some places I might have been in danger of my life" (SC 145). Apart from this there were several cases of mistaken identity or inconclusive evidence so that the prosecution had to withdraw accusations.43 The court had to answer all these questions on the spur of the moment, constantly aware of the dangers of false swearing, biased remembrance, and forced witnessing, without always being able to find out the truth. This was perhaps why, in the end, only twenty-five rioters were hanged and twelve imprisoned.
What comes as a surprise, however, is the high number of acquittals near the end of the trials: thus e.g. there were eleven consecutive trials with ten times the verdict "Not Guilty" and one recommendation of mercy (trials no. 371-380). Of the thirty verdicts at the end of the Sessions, there were 19 "Not Guilty", seven "Guilty Death" and four verdicts of imprisonment for stealing and/or receiving (six or twelve months). There was a similar tendency in regard to the Special Commission: trials no. 16 to 27 resulted in the verdict "Not Guilty". Thus there are a number of reasons for doubting the outcome of the trails. As we are unable to uncover the truth behind the accounts of the witnesses, according to our present-day methods of truth-finding, we will never know if the verdicts - guilty or not guilty - were in fact justified. This must have consequences for the reliability of empirical research based on the printed materials.
11. Dickensian Insanity and Politics
As said before, Dickens's Barnaby Rudge foregrounds the idea of unregenerate madness, "pathologies on the domestic level that bear socially destructive potential." It is true that some of the trials focus on cases of "insanity" or "madness." Thus defendants were said to have been drunk "in liquor [...] entirely a madman" (SC 49); "I would never let him come into my house to have any liquor, because he is as mad as any man in Bedlam." (SC 110). Another defendant seemed to have been, like his "lunatic" father, "not [...] right in his mind." (SC 93) Another witness remarked: "I have heard that at times he is insane. I have heard gentlemen say who went to school with him; that when he was a school boy, he would strip himself naked and run about the town where he was born." (WP 424) In the case R. Hyde, the doctor's report says that the defendant, like his father, had for several years been "in a state of insanity"; Hyde was acquitted and delivered to the care of the keeper of the Wood-street compter (WP 615). Thus cases of insanity or madness presupposed a "whole story", reaching back into family histories.
There were, as we can see, some trials that centered on the defendant's "madness" or "lunacy," but considering legal medicine barely existed in England (Ward 1997), Dickens supposedly would have seen this phenomenon from a more advanced nineteenth-century scientific point of view (for this, see Böker 1981). Whenever contemporaries spoke of insanity, they did it in a very loose way, as Walpole when he called Lord Gordon "a mad dog" and "the late delirium [...] the mixture of rage and consideration in the mob." (VII, 382 and 401) In one of his letters he wrote: "When prisons are leveled to the ground, when the Bank is aimed at, and reformation is attempted by conflagrations, the savages of Canada are the only fit allies of Lord Gordon and his crew." And again: "The monster that conjured up this tempest is now manacled in the Tower. But what nation is Scotland; in every reign engendering traitors to the State, and false and pernicious to the Kings that favour it the most! National prejudices, I know, are very vulgar; but, if there are national characteristics, can one but dislike the soils and climates that concur to produce them?" (VII, 398 and 400) Walpole based his view, as we can see, on the idea of the existence of national characters, i.e. on ethnic stereotypes.
On the other hand, although there had been rumours that the riots "had been concerted by our foreign enemies" (GTr: II, 3; Holcroft: 45), outright political accusations did not play a role in the trials; and although the radical affinities of the riots have been noted, the violent events were considered "a pardigm of plebeian degeneracy" by the radicals (Rogers: 51). The administration was of the opinion, as the Attorney General remarked during the trial of Lord Gordon, that there are always "people who attend these places [of general meetings] who cannot exist without the opportunity of plunder" (GTr: I, 10), thus repeating the ministerial explanation of the riots originating in a lawless rabble (Rogers: 40). Nevertheless, some depositions suggested a pre-revolutionary subversive political undercurrent. Witness John Toope claimed that a defendant had remarked "protestants, or not, no gentleman need be possessed of more than 1000l. a year, that is money enough for any gentleman to live upon" (SC 11). Another witness testified:
there was a difference between the two people in their accounts [before the magistrate]; one of them said, that when he began to criticise about religion, and asked what property the people had that were in the house, he said, no man should enjoy more than a hundred pounds a year; the other said, a thousand pounds a year. In summing up the affidavit they both swore to a thousand a year. (SC 13)
In another case the defendant was said to have been motivated by "the cause":
there should not be a prison standing on the morrow in London [...] the Bishop of London's house as well as the Duke of Norfolk's house should come down that night [...]. D-mn my eyes I have no religion, but I love to keep it up for the good of the cause, and by to-morrow night you shall not have a prison left in London. (WC 447 and 450; cf. Linebaugh: 346-48)
Was this, in the words of McLynn, "a revolution manqué," or was it the outcome of the still unregenerate body politic? The trials themselves do not give an clear answer.
12. The Trial of Lord George Gordon
On Friday, 9 June, Lord George had been arrested on charge of High Treason and committed to the Tower. It took some months before he he was arraigned in the Court of King's Bench on 25 January 1781 (GTr I/II; Wharam: 65ff.). The trial before Lord Mansfield, sitting with judges Willes, Ashhurst and Buller, took place on Monday, 5 February 1781. As we can see from the report taken in short-hand by Joseph Gurney (in two parts, 37 and 65 pages, respectively),44 Lord Gordon's counsels were Thomas Erskine and Lloyd Kenyon, both of them without any experience in similar cases. Out of the 48 jurors returned by the sheriff some were excused because of illness, others were challenged by the prisoner or by the crown; the remaining twelve were all of them "Esq", amongst them a silversmith, two distillers and one wine merchant. Without going too much into detail, we can see that the Attorney-General tried to prove Lord Gordon's 'authorship' of the riots as a whole, saying that the verdict "will teach the present and future ages this lesson, that no man, however exalted in birth, situation, or connexion, can violate the peace, the order, the government, and the laws of his country, with impunity" (GTr I: 12). Lord Gordon's first counsel, Lloyd Kenyon, attempted to re-interpret the highly ambiguous legal term "constructive treason" (GTrII: 3). In the course of his pleading he questioned witnesses' language that suggested some undercurrent of conspiratorial aggressiveness on the side of Lord Gordon ("people [...] arrayed [...] marched in columns" etc., GTrII: 4, 6, 10), and the prosecutor's failure to produce the appropriate witnesses. On top of this, he openly cast doubts on the notion of the isolated and uncorroborated evidence as contrasted with "the field of probability", the connected "whole" of evidence that results in a "consistent" narrative - and, from the point of view of possibility and probability, in a coherent and thus convincing chain of evidence (GTrII: 4, 5, 10; cf. 12).
Lord Gordon's second counsel for the defence, young Thomas Erskine, did not only explain in a learned abstract way the law of treason, but, like Kenyon before him, attempted to reconstruct "one consistent discourse" (GTrII: 43). Lord Gordon was to be judged not from the consequences, but "from causes and designs" (GTrII: 48; cf. 43); consequently "in all cumulative constructive treasons you are to judge from the tenor of a man's behaviour not from crooked and disjointed parts of it" (GTrII: 45). Jurymen and judges should "look back on the whole of it together" (GTrII: 46). Erskine even suggested that the prosecution tried "to infect your [the jury's] imaginations" with misleading arguments and to "connect [the evidence] with consequences in spite of reason and truth" (GTrII: 48). Kenyon and Erskine won their case. The man who had often been called 'Lord Blaze' was held not to be responsible for the deeds of the rioters. Thus Kenyon and Erskine laid the groundwork for the successful defence of Thomas Hardy, Horne Tooke and John Thewell in 1794 (see Barrell 2000; and Houswitschka 2004).
Notes
1 For other contemporary personal accounts, see Walpole: VII, 398-422; Crabbe: 78-80; Sancho: 217-220; Holcroft: 1780; "Rise and Progress," 265-268, 312-316, and 367-369.
2 Catholics had been allowed to purchase real property, and penalties for priests who offered school education were restricted. The 1780 act was intended to further improve the Roman Catholics' legal status. Cf. Sir George Savile's observations when introducing the bill to repeal an act of the 10th and 11th of William III in 1780; Holcroft: 8. For Holcroft as a witness in one of the trials, see Whole Proceedings 1780, 518: trials nos. 364.365.
3 For the concept of narrative, see Bennett and Feldman 1981.
4 For the definition of felony, see M. Dalton, The Country Justice (1682 edition): "every Person attainted of Felony [...] shall lose his life, and be hanged between Heaven and Earth, as unworthy of both." (Quot. in Langbein: 36)
5 The proclamation was printed in The Morning Post and Daily Advertiser, Friday, 9 June, 1780. For a facsimile, see Kazantzis 1968. See also Holcroft's reservations about martial law and the "possibility of abuse, the being but an hour under the controul of a Military Force, was humiliating, derogatory, and alarming" (41). Cf. Rogers: 46, for Lord Mansfield's legal construction that soldiers could act as citizens in popular tumults.
6 For some earlier prints of the destruction of houses in the Strand in connection with the Penlez-case, see Zirker's edition of Fielding writings on criminal matters: Zirker 1988, xxvi-xxvii.
7 See 'The destruction of Newgate on 7 June 1780 by the Gordon Rioters' (illus. 16) and 'The mob destroys King's Bench Prison' (illus. 18) in McLynn, between pages 132 and 133.
8 See the quotation from the State Papers: "200 house breakers with tools; 550 pick-pockets; 6,000 of alsorts; 50 men that [gives] them orders what to be done; they only come att night [sic]" (quot. in Rudé: 280).
9 See Fielding's own account and his complaints about "this Malefactor" being "made an Object of Sedition [...] the Sufferer, instead of remaining an example to incite Terror, is recommended to our Honour and Admiration" (34).
10 For the names of the hanged and the places of execution, see Linebaugh: 364.
11 The trial accounts, available in a microfiche collection by Chadwyck-Healey, are cited as SC (Special Commission) and WP (Whole Proceedings). The Sessions papers will be made available for online-search from 5 March 2003:
www.oldbaileyonline.org.
12 Cf. Blackstone: IV, 255 ff., esp. ch. 19: "The court of oyer and terminer, and general goal delivery, which is held before the king's commissioners, among whom are usually two judges of the courts at Westminster, twice in every year in every county of the kingdom; except the four northern ones, where it is held only once, and London and Middlesex, wherein it is held eight times (266). "[...] the judges only are of the quorum, so that the rest cannot act without them. The words of the commission are, 'to enquire, hear, and determine:' so that by virtue of this commission they can only proceed upon an indictment found at the same assizes; for they must first inquire, by means of the grand jury or inquest, before they are empowered to hear and determine by the help of the petit jury. [...] fifthly, a commission of general gaol delivery; which empowers them to try and deliver every prisoner, who shall be in the gaol when the judges arrive at the circuit town, whenever indicted, or for whatever crime committed. [...] So that, one way or other, the gaols are cleared, and all offenders tried, punished, or delivered, twice in every year. "Sometimes also, upon urgent occasions, the king issues a special or extraordinary commission of oyer and terminer, and gaol delivery, confined to those offences which stand in need of immediate inquiry and punishment (267).
13 Every individual defendant received a number; in this case these are, because of two persons accused, no. 291 and 292. The trial took place during the fifth session in the mayoralty of Brackley Kennet, Lord Mayor of the City of London, the mayor being chosen from among the aldermen of the City of London for a one-year term. The Proceedings were shortly afterwards published as no. V, part I.
14 The London mayoral office changed hands in November every year; the official records run from the December sessions on one year to the October sessions of the next. There were altogether eight sessions. See Langbein: 12 and n. 29.
15 WP, record no. 300, in no. VI, part II, 378ff. All the other trials are recorded in no. VI, parts II to XIII, 422-639. On the loss of Mansfield's library, see Oldham: 161ff. According to Oldham, 55 of 110 volumes of trial notebooks are know to have survived, whereas the manuscript of a book ready for press and a manuscript of Lord Bolingbroke's seems to have been destroyed.
16 For number publication, see Altick 1963: 55-57. On the Sessions Papers as legal sources, see Langbein 1983: 4.
17 See Langbein: 21, for the seven pages report on the case of Mary Smith, tried on the charge of murdering an employee. For the pace of trials, see ibid.: 115 ff.
18 See the trials of Charles King and Ambrose Lane: SC 18-29.
19 Thomas Gurney had been appointed official reporter for the Old Bailey since the end of the seventeen-forties, and when he died in 1770, his son succeeded him. See Langbein: 12. He had, on the basis of "more than forty years practice", written a handbook called Brachygraphy; or, An easy and compendious System of Short-Hand (various editions).
20 See Green: 272: n. 7, quoting from Beattie that the Surrey juries "do not appear to have found it necessary to withdraw very often".
21 See Langbein: 20. For the question of witnesses being allowed to be present during the trial, see the trials of Laurence and Roberts in WP no. 291.292.362. Witness Morant is asked a question that shows that he had been present during the previous hearing. On the other hand, witnesses were obviously not allowed to be present in the courtroom before giving their own evidence. In one of the cases at St. Margaret's Hall the "prisoner" told the Court that he had just been informed that "there was a lady in court that could give material evidence in his favour. The witnesses both for the crown and the prisoner had been ordered to withdraw at the commencement of the trial, for the purpose of being examined apart, and were then informed, that their evidence could not be received in case they came into Court before they were called; and the Court had in the course of the trial refused to receive the evidence of a witness in support of the prosecution, because he happened to be in Court during part of the examination of the witnesses. It appeared that Mrs. Jones, the person alluded to by the prisoner, had been in court during the whole trial; but the Counsel for the Crown consented to her being examined on the part of the prisoner" (SC 164). However, there seem to have been cases when a witness had obviously been in the courtroom, overhearing what somebody else had said. For a case of evidence not admitted: "Court. I am sorry, in the situation you stand in, to interrupt you; it is indeed very painful to me, but as what you offer cannot be admitted in evidence it is my duty not to permit you state it. I am very sorry to be obliged to interrupt you." (WP 391)
22 According to Beattie's calculations, 7.2 percent of the prosecutors and 12.8 percent of defendants employed counsel at the Old Bailey in 1782; for the figures for the same year, see Landsman 1990; the figures are 5.69% and 26.08% respectively (Beattie: 260, n. 17). For the year 1780, see Beattie's statistics (227), although he does not include cases arising form the Gordon Riots.
23 It was only in 1782 that the new proprietor of the Sessions Papers, Edward Hodgson, allowed a more detailed reporting, including more procedural detail, judges' summing up, their comments on the law etc. In 1783 the counsels began also to be mentioned by name.
24 For the method of choosing the members of the jury panel, see Oldham: 96, quotation from the London Chronicle, 4-7 June 1763: "The Master of the Crown Office, attended by the Under sheriff and the Attorney on both sides, and having the book of freeholders before him, according as the Attorneys agree, pitches upon the first, second, third, or last man in every page, or in any other manner that they can devise, to make it the work of chance, and when forty-eight men are struck in that method, each of the Attorneys strikes out twelve, and the remaining twenty-four are returned to serve as a jury."
25 As Beattie: 222, remarks, criminal trials in the early eighteenth century were no more than half an hour on the average, including the jury's deliberations and the verdict.
26 For the possibilities of challenging a jury, see Blackstone: III, 363f.
27 See Blackstone: III, 351, on the distinction between grand and petit jury: "Another species of extraordinary juries, is the jury to try an attaint; which is a process commenced against a former jury, for bringing in a false verdict [...]. [...] this jury is to consist of twenty four of the best men in the county, who are called the grand jury in the attaint, to distinguish them from the first or petit jury; and these are to hear and try the goodness of the former verdict".
28 In view of the permanent complaints about jurymen's negligence (non-attendance etc.) it is important to say that none of the jury seem to have been replaced, out of various reasons, during a day of trial. As we learn from Blackstone: III, 358, there should have 48 persons. On the method of selecting the twelve jurymen, see ibid.
29 See Oldham: 91. See the details about the Croydon assizes for August 1777, when two special jury cases were called but could not be tried because of lack of special jurymen: "This raised the noble judge [Lord Mansfield] to express great indignation at the flagrant neglect of justice and the defeating to the good intent of the laws [...]." See also Langbein: 28 f.
30 For biographical information about the judges, see Foss 1870, as well as Oldham 1992.
31 See Langbein 1983: 31ff. Langbein: 22 and 33, quotes from the Ryder papers: "I summed up fully, and concluded that I and my brothers [Clive] and Legge and the Recorder were all of the opinion that it was but manslaughter."
32 See Langbein: 77, and Bertelsen 1997. Justices of the Peace as a pre-trial officers helped to generate evidence for felony trials, to examine the accused and the accusers, to reduce these examinations to writing for the trial court, and to bind over to trial both the accused and the material witnesses against him.
1 See Langbein: 132-33: There was no dossier that recorded pre-trial investigations; judges relied on Justices of the Peace and grand juries to eliminate out groundless cases etc. There are some examples of participants in the trials referring back to the pre-trial examinations. Cf. the following statement: "Flemine. At the justice's she said she believed I was one of the men; but she could not be certain. - When they were examined before the justice did you say you thought Flemine was the man, but you were not certain of it? - I said Flemine was the man, I was very sure of it." (WP 532).
34 See Langbein: 117, n. 466, for Fielding's account of the Middlesex procedure (1761): "Bills of Indictment for Felony in the County of Middlesex, are preferred before the Grand Jury at Hicks Hall in St. John's Street, where there are two Clerks, viz. Mr. Higgs and Mr. Mason, who are appointed to draw the same. Mr. Higgs draws the Indictments against such Felons whose Name or Names begin with any Letter in the Alphabet from A to M and Mr. Mason draws those against such whose Names begin with any Letter in the remaining Part of the Alphabet; and Prosecutors for Felony should endeavour, if possible, to be at Hicks Hall on the Tuesday morning in the Sessions Week, and take with them their Witnesses; and it will always save their Time, if they carry with them in Writing, the Name or Names of the Prisoner or Prisoners, with the Names of the Witnesses, and an Account of the Things stolen, and the Time when; which thy much give to the Clerk of Indictments, agreeable to the above Rule of the Alphabet, and if the Bill be there found a true Bill, the must immediately attend the Old Bailey, where the Offender will be tried; and if the Offence committed in the city of London, the Prosecutor must prefer his Bill of Indictment at the Old Bailey, and apply to Mr. Ford".
35 According to Howson: 39, the City Recorder was "the senior judge in London (taking precedence after the Lord Mayor) and the official 'voice of the City". Cf. also the frontispiece to volume III Jackson 1795: "The Recorder making the Report on the capital Convicts to His Majesty in Council".
36 For the Earl of Mansfield's calendar of sittings, see Oldham: 121ff. See the figures for the judicial years 1780-81 through 1785-86 in Oldham: 124.
37 See Beatty: 223, and the quot. from W. Hawkins' The Pleas of the Crown (1721) in Langbein: 123: "[E]very one of Common Understanding may as properly speak to a Matter of Fact, as if he were the best Lawyer; ... it requires no manner of Skill to make a plain and honest Defence ... Whereas on the other Side, the very Speech, Gesture and Countenance, and Manner of Defence of those who are Guilty, when they speak for themselves may often help to disclose the Truth, which probably would not so well be discovered from the artificial Defence of others speaking for them."
38 For complaints about the purportedly withheld testimony and the accusation of partiality, see Rogers: 50.
39 Trial no. 324, appropriately printed at the beginning of WP no. VI, part V.
40 See also Linebaugh: 353-54.
41 See SC 53: "Counsel for the Crown. [...] what do you mean by being active? --- Pulling the place down". Ibid. 91: "Cross Examination. If I understand you rightly, Smith was quite inactive, he was not doing any thing? [...] Can you say he did not huzza? [...] Did you see any body out the flag into his hand?"
42 See WP 429; 432.- See SC 135: "[...] after coming from the justice's, we came down to a public house [...] and had a pot of beer; Kelly said, by Jesus we quarrelled about six months ago and there is 50l. reward; he is done over now; he said it over again [...]".- WP 446: "Before I proceed to give evidence against the prisoner, I beg the court will indulge me with some observation on my conduct. It has been suggested by the prisoner's friends that I have prosecuted this man for the reward; and that notion has so prevailed that I have been insulted from day to day. I steer clear of that matter; I disclaim the reward. I hope the court know me so well that they know I do not want".- WP 435: "Did you expect any money when you went [to give evidence]? [...] Do you claim any reward? [...] Can you read? [...] Did you read the proclamation? [...] How could you tell the gentleman there was no reward offered?"- SC 8: "Wilkins and Baseman were taken up the day before me on account of things of Capt. French being found upon them, and so to get themselves out of the hobble, they bring me here. They said, they were sorry for what they had said, and that they would not speak a work in court, unless they had the money down first. I had that intelligence brought me to the New Goal".
43 Cf. SC, trials no. 2, 16 and 27; WP, trials no. 314, 315, 333, 371, 399, 407, 419 and 424.
44 At the same time, there was another edition "published under the Inspection of his Lordship's Friends" in Edinburgh that contained the story of the Protestant Associations in Scotland and England, the trial acount itself as well as a "congratulary address from various committees and societies of the Protestant Associations and Lord Gordon's answers (GTr2).
