The workings of a criminal court in the 18th century were quite different from what we expect today. For one thing, the magistrate often acted more as public prosecutor and chief detective than impartial judge. Between 1750 and 1850 most criminal cases were characterized by face-to-face confrontation between the prosecutor and the accused. Defense counsel rarely appeared. The assumption was that the accused had no need of counsel, since the burden of proof was on the prosecution and the accused was a greater expert on the truth. When clarification was needed, the trial judge was expected to assist the accused with advice.
Prisoners were not allowed to see the evidence against them before trial, and, once in the courtroom, were not allowed to testify (since they could not be trusted to uphold an oath). They were also not entitled to sum up their defense for the jury, though the prosecution was given the opportunity to make a final statement. Before trial, the prisoner was expected to submit a written defense that was to be read aloud in court. This was a grave disadvantage for the poor and the ignorant, who frequently could neither read nor write.
Some prisoners "stood mute," refusing to answer "guilty" or "not guilty" to the charges against them. In such cases, they would be stretched out on the ground and pressed with crushing lead weights until they spoke. Sometimes they died in the process.
Defense counsel, according to evidence of the Old Bailey Sessions Papers, began to make very rare appearances in criminal trials during the 1730s, but for the 18th century and the early part of the 19th century their role was not strictly defined. It was not until the late 19th century that cross-examination was consistently practiced, with objections to leading questions - but there was still a willingness to allow so-called expert witnesses to give decisive opinions on the whole question of guilt.
Up until 1774, prisoners who were discharged or found not guilty through trial usually had to pay back the expenses related to their imprisonment - these were known as "jailor's fees." Because many could not afford to pay, they found themselves re-imprisoned, this time as debtors. It was a vicious circle.
In an age virtually without police, the machinery of law was uncompromising and brutal. In total, 240 offenses were punishable by death, and hanging was prescribed for accessories as well. Punishments ranged from standing in the pillory to branding and whipping to burning (for particularly shameful crimes, like treason). A number of 18th century theorists believed hanging was not punishment enough for felons and proposed "breaking on the wheel" instead. In 1752, a law was passed that required "some further Terror and peculiar mark of Infamy be added to the Punishment of Death" for murder. The convicted murderer was to be kept on bread and water in a special cell, and after execution, his body was to hang in chains before the public, then go to the surgeons for dissection.
"Dr. Samuel Johnson was one who saw that capital punishment satisfied a sinister human craving for power over others' lives, but did not really deter crime. Undiscriminating severity simply made criminals more cunning and more desperate, and confused small crimes with great ones." -Clive Elmsley, Crime and Society in Society in England 1750-1900 (11)
Juries were generally loath to convict people for property crimes, since the penalty of death seemed disturbingly harsh. In fact, many victims declined to pursue matters through the legal system out of a sheer unwillingness to see the perpetrators hanged for their offense. However, imprisonment was not considered a reasonable alternative to capital punishment, since it placed young criminals into contact with older, hard-bitten ones, encouraging partnerships. The ingenious idea of transportation became an alternative punishment beginning around 1718. Criminals were deported to the remote colonies of Maryland and Virginia on the American shore and, later in the century, were sent off to settle New South Wales, Australia.
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