Law and Order: The Original Series
Scoundrel’s Alley Presents:
The Scholarly Scoundrel.
A Continuing Series of Thoughts Pertinent to
Historical Scoundrels Everywhere.
‘Many cartloads of our fellow creatures are once in six weeks carried to slaughter.’
-Henry Fielding, Author, and Magistrate, 1749
N.B. Greetings, Dear Reader. As one might expect, the area of Law Enforcement is paramount to those of us dwelling in the shadows of polite society. But even wading gently into the waters of the subject of justice is not without its peril. Each colony in the 18th Century had its own ideas of how to proceed, indeed even from individual town to town. Today, our interest is not so much to tackle the absolute, complete, and end-all of what was occurring through the justice system of the colonies of the 18th century and into the fledgling country of the early 19th, instead of giving a broad overview of what one might expect to face. Provided that one did not hear our resident Bo Peep ‘cry beef’ and was then found by the Harmanbeck not ‘playing least in sight’!
Law and Justice: A Brief Beginning
English law, and by extension Colonial law of the 18th century in its raw form, can be traced back to Alfred the Great (ruling 871-899) and his introduction of what will be the basis of all law in the future, a ‘Doom Book’ or ‘Judgement Book’ completed in 893. In it, he will codify the three significant Saxon law collections and incorporate Mosaic law from the Old Testament books of Deuteronomy and Exodus and a code of ethics he took from the New Testament book of Acts. This ‘Doom Book’ will stand until the Assize of Arms, known as the Statute of Winchester, is published in 1233, which will form the basis of our laws until the ‘Metropolitan Police Act’ of 1829 begins the era of ‘modern’ policing.
Where Alfred had divided the kingdom into family groups known as ‘Tithings,’ with anyone over the age of 12 being responsible for raising a ‘Hue and Cry’ if witnessing a crime, King Edmund (ruling from 939-946) would expound on this idea. He would form these family ‘tithings’ into blocks of 10. As the groups enlarged and people began to move more and more outside of their original family, the term ‘Tithing’ will quickly change to ‘Shire’ and finally, much later, to ‘County.’ In addition, he charged each Tithing/Shire to have a ‘Reeve’ appointed by the crown to apprehend and present in front of a magistrate-also appointed by the crown-scofflaws for punishment. Except for High Treason, by and large, the punishment was monetary. And this fine was not expected to be paid by the criminal but by the family ‘tithing’ he belonged to, forcing a style of ‘self-policing’ within each group.
With the Assize of Arms (Statute of Winchester) being enacted by Edward I (ruling 1272-1307), a central figure known as the ‘Shire Reeve’ (later corrupted to ‘Sheriff) as the chief law enforcement officer of a county was established. With the ability to impress men into a ‘posse comitatus’ for the tracking and apprehension of criminals, this ‘Shire Reeve’ was, for the first time, also given the authority to travel outside of his own Shire in pursuit of the criminal. Edward, at this time, also establishes both ‘watchmen’ and ‘constables.’
These two had no jurisdiction outside their respective Shires unless they were part of a ‘posse comitatus.’ The sole purpose of the watchman was actually not to apprehend or stop a crime being committed but to set up a ‘hue and cry’ if witnessing one, alerting the Reeve and/or Constable. The Constable had the authority to quell uprisings as well as call men to arms in order to stop a crime or criminal from leaving the Shire. Because the Crown had as its focus crimes involving insurrection, treason, coining, and cattle rustling, any other crime involving property and the recovery of same relied on the ability of the victim, often as not without the help of the constable to be able to capture, gather the evidence and present it to the Shire Reeve. It was then his, that is the Shire Reeve’s responsibility, to present the evidence and the offender to the crown-appointed magistrate for punishment. Simply put, if there was no evidence, there was no crime.
Henry I (ruling 1100-1135) will, in 1114, change many of the punishments from monetary to executions. In 1196 William Fitz (Longbeard) Osbert will be the first person executed at the famed Tyburn Tree. He was university educated, had been on Crusade to the Holy Land, and held civic office in London. His crime? Organizing riots in areas of London by the poor and robbing the more affluent houses during the uprisings. John Austin, highway robber, would be the last to be hanged at Tyburn on 7 Nov. 1783. There have been an estimated 50,000 persons hanged at the famed gallows, not including burnings, beheadings, and strangulations.
Punishments: An Overview
After Henry I had instituted the movement away from monetary to physical punishments-because the poor had no money and incarceration was considered ‘cruel and unusual’-there became a large range of what would by today’s standards BE ‘cruel and unusual. Branding or burning on the cheek, palm, forehead (if the crime was committed on Sunday), or thumb was instituted for everything from petty theft to fornication. Whipping was common, often as a public spectacle with the person, be they male, female, child, or adult, stripped of their upper garments and tied to a post. Cropping of the ears, whereby the earlobe or even the whole ear was removed without anesthesia. Stocks and pillory were common but limited in their usage by time. The stocks consisted of holes whereby feet were inserted and locked between two boards and the victim sat; the pillory had the head and hands placed in holes between two boards, and the victim was forced to stand stooped over. Often the timeframe, measured in hours, would be divided up over two or more days, one hour per day being the most common. The pillory often included having one, or both ears nailed to the board. Standing with the hangman noose tight around the neck for an amount of time was common, an ostentatious way to remind a criminal that the noose could be fully tightened or the rope could be pulled or board pulled from their feet at any time if they were found to commit another crime.
While these were seen as the lighter of the sentences, they carried the possibility of long-term effects, if not death. Branding was a lifelong disfigurement, as was the cropping of the ears. Whipping could and often did lead to infections, which led to death. The stocks and pillory, used often on women instead of whipping, carried its own problems. For once restrained in the device, the offender was subject to public ridicule and, ofttimes, ‘pummeling.’
Although ‘pummeling’ was not considered a part of the punishment and was frowned upon, it was a common occurrence. Rocks, sticks, fruit, and vegetables, even fecal matter, both human and animal, would be gathered up and thrown at the helpless victim, unable to fend off the missiles. This could be considered a further punishment and could often be worse than the original punishment itself. An example was Elizabeth Needham, famed not only as a ‘procuress’ of young men and women for wealthy clients but also featured as the bawd in Hogarth’s series ‘Harlot’s Progress.’
When Needham was finally captured-or, rather she came to the unwanted attention of the ‘Society for the Reformation of Manners,’ she was brought before the magistrate, found guilty of running a ‘disorderly house’ and sentenced to stand in the pillory for three hours, divided over two days. Unfortunately, she was so battered by the crowd that gathered to witness her punishment that even though she was removed alive at the end of her first day, she succumbed to her injuries two days later, the day before she was to finish out her sentence.
But these punishments were often only for the commoners, the poor, professional criminals, and their ilk. The crown took very little interest in the doings of this class, provided they did not cross the line into treason, sedition, or coining (counterfeiting currency or shaving the metal off coinage). For these, the Crown took a very dim view, and the punishment for this was sometimes quick but always severe. Burning, strangulation, beheading, and hanging were quick and highly effective in ensuring the criminal did not return to their vagaries. Drawing and quartering were done to the most heinous offenders; usually those found guilty of treason. For this, they were ‘dragged’ behind horses to the place of execution, hanged by the neck ‘until mostly dead,’ taken down alive (usually), their entrails removed, and then their arms and legs cut off and placed at the four points of the compass around the city with the head mounted in public view. The Crown DID take a dim view of sedition and insurrection.
The Crown plied this rather barbaric practice as their favorite way of stopping treasonous acts would stay as law until a movement for reformation of the criminal code that began in the early part of the 19th century finally gained ground. Considering ‘hanged by the neck until almost dead’ to be somewhat ‘cruel and unusual,’ The ‘Crimes Act’ of 1814 changed the law to read ‘hanged until dead.’ Public display of the body parts was removed from the law in 1843, and drawing and quartering in 1870.
Hanging quickly grew to be the most common punishment, so much that in 1571 Tyburn, the major execution spot for London, was enlarged to have the hanging tree built as a triangle, what would be known as the ‘Triple Tree’ for multiple executions to happen at the same time. Of course, burnings were occurring in the same location, though by 1686, both burning and beheading fell out of favor and was replaced with hanging as the primary form of execution. Parliament did change the law to reflect this, but that was more for the time it took to execute by burning and the fact that the ‘Royal Hangman and Cutter’ John (Jack) Ketch was so bad at beheadings. But his name lives on, as a ‘Jack Ketch’ is a colloquialism for executioners throughout history.
Oddly enough, the colonies seemed to be more ‘forgiving’ than her mother England.
The Colonies: An Offspring
In 1691 Queen Mary, now co-regent with William helped fund the ‘Society for the Reformation of Manners.’ This came about partially due to the Jacobite Uprising of 1689 and the newly released soldiers upon the populous with their ‘debauchery and vagaries.’ In addition to making profanity, prostitution, and brothels illegal, the Coinage Act of 1692, which devalued the currency of Ireland to nothing, caused England and especially London to be overrun with the poor and destitute who had to survive any way they could, petty crime being the most common. And the most common punishment was hanging. So many hangings that London had mass hangings approximately every six weeks, and the whole of the town would turn out to watch the spectacle.
To counter that, the Transportation Act of 1717 was enacted. And while England had been transporting their criminals to the colonies since the beginning, this law now gave the courts the option of either hanging or-for minor offenses-to be sent to the colonies and sold at public auction for a 7-year indentureship. And at the end of the indentureship these criminals were free with no place to go, they were stuck in the colonies. It has been estimated that three-quarters of all immigrants to the Americas in the 18th century came in some sort of chain-slave, indenture by hire, and some 50,000 men, women, and children as transported criminals under this law.
While there were undoubtedly executions in the colonies, they were not nearly as common as in England, even without the influx of criminals, both those who finished their indentureship and those that ran away from it. Branding, whipping, caning, stocks, pillories, tongue boring, running the gauntlet, public shaming in the form of a dunking stool, and metal ‘brank’ or ‘gossip bridle’ for gossips were much more common. The colonies made much use of the pillory, and all sharpers, beggars, vagabonds, and shiftless persons stood a good chance of finding themselves set in one. Actually, there are many records of the pillory being used not just for such vagaries as listed, but there are documents of the pillory being used for such as arson, blasphemy, witchcraft, perjury, wife-beating, cheating, forgery, coin clipping, dice cogging, slandering, conjuring, fortune-telling, quack medicine selling and drunkenness.
Why this was the case could be very much the population size. The population of London in 1800 was 1.2 million people, and the population of the whole of the United States was 5.2 million people. They closer resembled the population areas seen by Edmund when he instituted his ‘Shires’ and depended more on the group to police themselves. Most of the people here lived under what is often called ‘Parochialism’; that is, most people were born, lived, married, and died within their own towns and counties. It has been estimated that most would never see more than between 1,000-3,000 other people in their lifetime and would know most of them by sight, if not by name. Troublemakers were easily spotted and headed off.
The public perception of punishment was different and changing fast. One of the earliest ‘governmental’ changes would occur in the Connecticut Colony, who felt the pain and degradation of these punishments really weren’t the way that a civilized man should respond. Hence, a way to isolate them from society and reform them was much more humane. And while gaols had been used to hold condemned persons awaiting their punishment, they had never been intended for long-term incarceration. Indeed, many towns had no goal; those who had been apprehended were often housed at the home of the local constable or sheriff, awaiting both trial and punishment.
So, in May of 1773, three men-namely, Col. William Pitkin, Erastus Wolcott, and Captain Jonathan Humphrey were sent by the Connecticut General Assembly to Simsbury (now East Granby), where an abandoned copper mine was thought a suitable location.
Opened in 1705 as the first chartered mining company in the Americas, by 1772, the ore deposits had become too hard to mine and still retain any profits. But what it did have were two shafts, one 25-feet deep and another 67 feet deep. It was thought that by carving a 16-foot ‘lodging room’ off of the first shaft, an escape-proof prison could be established where men could not only pay for their sins but also learn a trade. Eventually, the state used these inmates in the trades of shoemakers, coopers, blacksmiths, wagon makers, bakers, and basket makers. Those not willing to learn a trade were set operating a treadwheel-consisting of continuing to climb the paddle blades attached to the grinders in order to grind grain.
Earlier that year, the General Assembly of Connecticut had passed an act that outlined the terms of imprisonment in preparation for founding a prison. A first offense for burglary, robbery, and counterfeiting, which under English law were all punishable by death, instead carried a sentence of no more than ten years incarcerated, with a second offense resulting in life in prison. And with a new iron gate installed near the top of the 25-foot shaft, the 63-foot shaft being deemed too deep for escapes, the ‘prison’-now named New-Gate after her English counterpart Newgate Prison was ready for her ‘guests.’ So, on 22 December 1773, John Hinson, a 20-year old found guilty of burglary had the honor of being that first person to be incarcerated.
Eighteen days later, on 9 January 1774, John Hinton, with the assistance of an unknown woman and a very long rope dropped down the 63-foot shaft, had the honor of being the first person to escape.
The prison itself was never considered a success. With a reputation for lack of security, poor living conditions, and an inability to show a profit even with all of its commercial ventures using prison labor, it was shut down by the state in 1827. However, it does survive today as a tourist attraction and, as of 1973, has been designated a National Historic Landmark and is run by the NPS.
The Cast of Characters
Trying to unravel the names of the law enforcement being employed in the 18th century is often riddled with misunderstanding, in part because a ‘sheriff’ in one county might be a ‘constable’ in another, and a ‘beadle’ could be an officer of the church OR an officer of the court. And those are just two examples. What we can do, is list some of the common ones and a general description of their jobs.
Magistrate was a representative of and appointed by the crown. Their duties were to dispense justice when cases were presented. Unless it was a crime against the crown (or government, as the Colonies gave way to the United States), they ruled and passed sentence there and then.
Sheriff (the Shire Reeve) was and still is the chief law enforcement officer of a county or shire, responsible for the apprehension of criminals as well as presenting them and evidence before the magistrate. The first listing for a sheriff in the colonies was in the Shire of Northampton, Va., where in 1634, Captain William Stone was appointed. This is also the location where in 1652 William Watters will become the first ELECTED sheriff in the Colonies.
Constable was ostensibly appointed to report crimes to the Sheriff; they will become synonymous with ‘undersheriff’ or ‘deputy,’ often working with the granted authority of the magistrate to carry out the duties of the sheriff if he is unavailable.
Night Watch was one of the earliest of the ‘law enforcement,’ whose sole job was to watch for fires and criminal activity, alerting the sheriff or his underlings of the crime being committed. They were to offer a ‘Hue and Cry’ as a warning and deterrent and had no arrest powers.
Beadle is better known in the Church as the one who calls people to the ecclesiastical council. Because of their dual responsibilities of running the parish poorhouse and charities, their duties would overlap as a Constable in a secular role, usually for the running of the workhouse.
Bailiff, another name for a Constable, would later be known primarily for their role in keeping order in a Magistrate court and running gaol and prisons.
Bum-Bailiff is a criminal ‘Cant’ term referring to a constable charged with gathering up debtors to be turned over to the Beadle.
Harmanbeck is another criminal ‘Cant’ term that refers to any law enforcement official.
Thief-Taker (not found in the Colonies) was anyone who could capture, present evidence, and win a conviction of a criminal. Established by Queen Mary, anyone doing so was awarded 40 pounds per criminal. So successful was this undertaking that the court system was overwhelmed with hangings, leading to the Transportation Act of 1718.
Posse derived from the ‘posse comitatus’ of the Statute of Winchester; this group was pressed into service by the sheriff to track down and apprehend a specific criminal. They had no jurisdiction outside the county and only for the specified crime/criminal.
Early on, most of the law enforcement was paid for by private individuals who hired ‘Charlies’ as their own private security. The term Police, while a 16th-century French word (Poliz), would not find favor in the Americas until the 19th century. Boston established the first official ‘Police Force’ in 1838, followed by New York City in 1845. And while most of the law enforcement fell to the local militia until that time, Charleston, South Carolina, had formed the ‘Charleston Guard and Watch’ in 1785 and included a chain of command, uniforms of a sort, a salary, and had instructions on the use of force and focused on preventing crime.
So that is but a brief overview of law enforcement. In the criminal Canting world tho, the focus is more on just not getting caught. So if you hear someone ‘cry beef,’ beware, lest the Harmanbeck cly your stampers and scour the cramp-ring and to the chates at lightmans you go!