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Summary Justice in Eighteenth- and Nineteenth-Century Southwark (London)

Kiran Mehta
p. 55-90

Résumés

La grande majorité des personnes qui ont eu affaire à la justice dans l’Angleterre du XVIIIesiècle y ont été confrontées à un niveau local, au plus bas du système de justice pénale. Cet article est une enquête sur les procédures d’un tribunal de première instance, le Southwark Town Hall, dans le quartier de Southwark, à Londres, des années 1770 aux années 1830. En s’appuyant notamment sur les deux registres d’affaires de la cour qui ont été conservés, ainsi que sur les registres d’incarcération, les comptes rendus judiciaires dans la presse et les rapports parlementaires, cet article examine comment la nature et le rôle du tribunal de Southwark ont évolué au cours de cette période. Il se concentre en particulier sur deux aspects d’une justice sommaire qui ont jusqu’à présent reçu une moindre attention de la part des historiens: le rôle que le sexe a joué dans la détermination des résultats ainsi que l’utilisation des punitions expéditives.

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Introduction

1Finding yet more linen rags missing from his shop, Thomas Street, a rag-merchant and stationer based at 39 Borough High Street, Southwark, complained to a local officer about his wayward servant, William Dunker, who Street suspected of taking the rags. With master and servant in tow, the constable, Joseph Lovejoy, made his way down the bustling High Street to Southwark Town Hall, where the City’s judicial agent in Southwark presided nearly every day. There, Street charged his servant of “robbing him at different times of a great Quantity of Linen Rags” and requested that the justice, James Kettilby, intervene.1 Though Street was no longer willing to ignore what he saw as the many thefts perpetrated against him, neither was he set on prosecuting Dunker. Instead, Dunker was offered a choice: be committed to prison to await trial at the quarter or Old Bailey sessions or enlist in the armed forces. Opting for the latter, Dunker was “discharged and attested in Lieutenant Colonel Fullerton’s now raised Regiment of Foot”, which set sail the following year, in 1781, for India, presumably with Dunker on board.2

  • 3 King (2004, 145-146), Gray (2013b, 11-12).

2The vast majority of people who experienced the law in eighteenth- and nineteenth-century England did so, like Dunker, before a justice of the peace sitting outside of formal sessions. At the summary level, the lowest rung of the criminal justice system, justices sat alone or in small groups hearing accusations and deciding whether to dismiss them, to broker an informal resolution, to send the offender to jury trial, or to try the offender immediately under summary jurisdiction, without either indictment or trial by jury. As with Dunker, most disputes were resolved informally, proceeding no further than the summary level. Summary justice was quick, comparatively inexpensive and local; consequently, it was more accessible than many other legal tribunals, and plebeian use was high.3

  • 4 For outside London see, Philips (1975), Oberwittler (1990), Hay (1998, 2004), King (2000, 2004, 2 (...)

3Despite the importance of summary jurisdiction, it initially received little attention from historians, who focused disproportionately on trials at the higher courts of the quarter and assize sessions and on the prosecution of serious offences, typically indictable property crime, that attracted the most punitive sentences. In recent decades, despite the challenges presented by magisterial record-keeping practice and poor archival survival, a considerable body of work has built up on summary proceedings. Research has explored a range of topics including the composition of judicial benches; the people who used the courts, who they prosecuted and for what offences; the nature of justice dispensed; the magistrate’s role as a filter for the higher courts; and the relationship between the magistracy and the police.4 Much of the work has focused on London, and it has concentrated on either the eighteenth or the late-nineteenth century.

  • 5 L.M.A., CLA/031/03/001, Record of Business done before the Southwark Justice, L.M.A., CLA/031/03/ (...)

4This article too centres on summary justice in London, but it focuses specifically on an unstudied aspect of the City of London’s magistracy — their administration of summary justice in the borough of Southwark. Though it has gone largely unnoticed, the City administered a summary court in Southwark, in addition to the well-known Guildhall and Mansion House, from the sixteenth to the mid-nineteenth century. Despite its longevity, only two court records from Southwark survive, a “record of business” done before the Southwark Justice in 1776-1781 and a court register from 1836.5 Analysing these sources quantitatively and qualitatively, this article investigates how summary justice in Southwark operated, first in the late-eighteenth century, and then in the early-nineteenth, and considers how the nature and role of the summary court evolved across the period. In addition to examining the court’s organisation, the cases heard, and the manner in which disputes were resolved, this article will explore two aspects of summary justice that have received less detailed attention: the role that gender played in determining outcomes and, relatedly, the use of summary punishment.

Summary justice in southwark (London)

  • 6 Petty sessions were rare outside of London before the mid-nineteenth century, and many parishes s (...)
  • 7 Beattie (2001, 91-94, 108-110, 144), G. Smith (2013, xiv). Each alderman was expected to serve fo (...)
  • 8 Beattie (2001, 110), G. Smith (2013, xv). Lord mayor heard cases coming from east of King Street (...)

5Across England, justice at the summary level took many guises. Defendants could be examined in private, like in a justice’s home, or in public, commonly in an inn or tavern, by either one justice sitting alone or by a handful of justices sitting together at a petty session.6 Most summary hearings were informal affairs situated in non-specialised settings, but the eighteenth century saw a growing proportion transformed into “regularly constituted courts with established procedures and premises” (King, 2000, 83). In the development of a regularised magistracy, the City of London, where all aldermen served ex-officio as justices, took the lead. From at least the 1690s, the lord mayors sat regularly in Guildhall to transact administrative and judicial business, and in 1737 the aldermen similarly agreed to sit “in rotation” at Guildhall.7 A separate court for the lord mayor opened at his residence, Mansion House, in 1753, and from then, complainants in the City had access to two established summary courts that operated every day but Sunday.8 This semi-compulsory system was extremely unusual at a time when justices of the peace acted as voluntary, unpaid officials without an obligation to carry out their duties.

6It is not commonly recognised, but decades before the City developed this system of summary justice, City authorities had established a similar arrangement in Southwark. From the sixteenth to the mid-nineteenth century, Southwark Town Hall, together with Guildhall and Mansion House, played an essential role in regulating crime and resolving interpersonal disputes in the City.

  • 9 On these attempts see, Beattie (2001, 2007, 2012), Paley (1983).

7The Royal Charter that made Southwark a borough of the City of London granted the Corporation the right to nominate a magistrate to the Commission of the Peace of Surrey, a right which they began to exercise in 1606 (Johnson, 1969, 229). The Justice of the Bridge Yard, as the position was called, was a salaried agent of the City tasked with administering its jurisdiction in Southwark. The City imposed only two clear requirements upon individuals who took up the post: they had to reside in or move to Southwark, and they had to carry out the functions of a justice of the peace (Johnson, 1969, 232-233). Initially, the justice received an annual stipend of £20 for rent, but almost immediately, the fee became an explicit salary as the City provided the justice with free accommodation (Johnson, 1969, 232-233). In 1550 a Justice House was set up in what was St. Margaret’s Church complete with an adjacent lock-up for the execution of justice; by the eighteenth century, this house was known as Town Hall (Johnson, 1969, 232-233). Not only did this position predate the hearings at Guildhall and Mansion House, but the Justice of the Bridge-Yard was also remunerated for his services. This appears to be the earliest instance of a justice receiving payment for his services, coming before the more well-studied experiments at Bow Street in 1740 and the Public Magistrates’ Offices in 1792.9

James kettilby and his court book

  • 10 Ancestry, Select Births and Christenings, 1538-1975, FLH film number 919631, <https://www.ancestr (...)
  • 11 T.N.A., IR 1/12 f. 30, Board of Stamps: Apprenticeship Books, City (Town) Registers, 16 March 173 (...)
  • 12 London Evening Post (21 December 1758), London Chronicle (22 December 1764).
  • 13 He was made Renter Warden in 1771, Upper Warden in 1772, and Master of the Guild in 1773 — placin (...)

8In February 1771, the Aldermen selected James Kettilby to serve as Southwark Justice. Probably born in Stoke-by-Nayland, Suffolk in 1708, Kettilby moved to London sometime before 1724 when, at the age of 16, he was listed in the Board of Stamps Apprenticeship Books as completing an apprenticeship with John Partridge, a member of the Apothecary Guild, in the City.10 After completing his apprenticeship in 1729-1730, Kettilby became a full member of the Apothecaries, taking on apprentices and later opening his own shop, and was admitted into the Freedom of the City.11 He was involved in City governance from at least 1757 when he served as a London Common Councilman sitting on the Sewers Committee. In 1759, he was elected Deputy of Coleman Street Ward, a position to which he was re-elected in 1765.12 His status rose quickly thereafter. In April 1769, he was elected a Governor of Bridewell and Bethlem Hospitals; in February 1771, he was appointed Justice of the Bridge Yard in Southwark; later that year his nomination to the Commission of the Peace in Surrey was accepted. Within the Apothecary Guild, he likewise rose through the ranks.13

  • 14 On competition for the post, Johnson (1969, 231-232).

9It is likely that Kettilby’s relatively low social status and his apparent aspirations for advancement influenced his decision to lobby for the unique post of Justice of the Bridge-Yard and to act diligently in the role.14 With respect to eighteenth-century Middlesex, Paley has argued that becoming an active justice served as an important and obvious indicator of social status. The lower a justice’s social status, the more he sought to present himself as a justice (1991, xiv). Kettilby’s social and professional progression suggests that he, like Paley’s justice Henry Norris, sought to make the jump from trade to gentry, and his active service as Justice of the Bridge Yard helped to bolster his claim to gentry status.

  • 15 There is one gap, 22 March to 24 May 1780, in the notebook. After his notebook ends, we know Kett (...)
  • 16 Beattie (2001, 104), King (2004, 137), Gray (2013a, 217).

10Kettilby’s court book dates from the middle of his service as Southwark Justice and covers five and a half years between 20 April 1776 and 23 May 1781.15 Over this period, Kettilby, sitting at Town Hall every day but Sunday, presided over nearly 2,000 examinations, excluding the mass of administrative business — witnessing affidavits, attesting men to various protections, licensing victuallers and the like — that came before him. This scale of business made him one of the busiest magistrates in England, surpassed in his yearly average only by Richard Brocas who, as City Lord Mayor in 1729-1730, recorded 457 hearings.16 The exceptional amount of business that these two men handled is perhaps unsurprising given the similarities of their positions. Both had jurisdiction over a portion of the populous and bustling metropolis and held regular, well-publicised hearings in court-like, public buildings.

11Recorded in Kettilby’s book are 1,783 examinations in which a hearing (beyond the issuance of a warrant) took place, and the following discussion centres around these cases and their adjudication. Though very little detail as to the substance of the cases is provided, the record is invaluable because in nearly every instance the outcome is recorded. In Table I, I have divided these examinations into four broad categories. “Property” includes various thefts, frauds, extortions and property damage; “violence” embraces assault and threatening speech or behaviour; “regulatory” encompasses vagrancy offences, disputes within the master-servant relationship (like a servant refusing to complete contracted work or an apprentice behaving disorderly), and a variety of offences against the Borough’s social and economic regulations. The latter included swearing oaths, escaping from prison, refusing quarter to soldiers, running bulls, obstructing the streets, disturbing religious congregations and tippling.

  • 17 L.M.A., CLA/031/03/001, Record of Business done before the Southwark Justice, 13 April 1778, 23 M (...)
  • 18 Parliamentary Papers (hereafter PP) (1833), Statement of Number of Persons taken into Custody by (...)

12Challenging our ability to assess the nature of Kettilby’s workload is the fact that the accused’s offence is unspecified in nearly half of all examinations. In most of these cases, such individuals were night charges — individuals arrested after Kettilby had finished hearing business for the day and who therefore had spent a night or more in the Borough Compter waiting to be seen by him. Of these, the vast majority, about 98%, had their charges dismissed when brought before Kettilby. Many entries note that the defendants had been brought in by a constable “on his own charge”, and many were discharged “on the promise of future good behaviour” or on the request of those, including officers, who brought them. A considerable number were probably brought to the Compter drunk, perhaps unruly, and released in the morning after sobering up. Many, for example, were imprisoned on the complaint of pub keepers, like John Raskarugh and John Jones committed “on a night charge by John Armstrong who keeps the Cock at Bottle Bridge”.17 Certainly, this practice seems to have been common among the Metropolitan Police in their early years. In 1831, for example, the Metropolitan police arrested 31,353 people for drunkenness, but only 7,566 of them were brought before a magistrate, with the remaining 76% simply discharged by the police superintendents when sober.18

Table I. Offenders at Southwark Town Hall, 1776-1781

Males

Females

Unknown

Total

% Offences

Property

160

86

1

247

13.9%

Felony

20

34

1

55

3.1%

Violence

191

83

4

278

15.6%

Regulatory

Vagrancy

31

199

2

232

13.0%

Employment

14

4

1

19

1.1%

Social and Economic Regulation

53

9

0

62

3.5%

Impressment Examination

76

0

0

76

4.3%

Not Specified

454

346

14

814

45.7%

Total

999

761

23

1783

100.0%

% of Total

56.0%

42.7%

1.3%

100.0%

Source: L.M.A., CLA/031/001, Record of Business done before the Southwark Justice.

Note: counting by defendant. This count excludes seven children who were passed along with their parents.

  • 19 L.M.A., CLA/031/03/001, Record of Business done before the Southwark Justice, 26, 31 October 1780
  • 20 L.M.A., CLA/031/03/001, Record of Business done before the Southwark Justice, 16 March 1779, 12 A (...)
  • 21 See also, King (2006, 41-43).

13The known hearings at Southwark were closely split between regulatory, property and violent offences, as at Guildhall and Mansion House in 1784-1796, and if we exclude unspecified offences, these accounted for 32.3%, 31.2% and 28.7% of examinations respectively (Gray, 2006, 34, 150). Most regulatory offenders were charged with disorderly behaviour. Property offenders were primarily accused of stealing food (especially butter, salt, cheese and alcohol), clothing or fabric, or lodging furnishings, but some were charged with considerable thefts. Margaret Fletcher, for instance, was accused of privately stealing seven and a half guineas in gold and four pence in silver, a crime that until 1808 carried the death penalty if fully proved.19 Generally, assaults were not recorded in detail. While most were probably minor, some clearly involved serious bodily harm, as when William Pearson was charged with “stabbing a boy with a bayonett” or when William Fielder was charged with sexually assaulting a nine-year-old girl.20 The remaining known examinations were for impressment into the armed services. As Nicholas Rogers has demonstrated, authorities in the City of London refused to back press warrants during the War for American Independence, so press gangs and others were forced to bring those they wished to impress to a magistrate for examination first (1998, 104-119).21 Kettilby seems to have pursued a similar policy in Southwark, and consequently, a large number of men (mainly in 1779) were examined by him or sent by him to be examined elsewhere for impressment. As Kettilby left such a large portion of offences unspecified, it is unwise to draw too many conclusions from the division of known offences, but it is nevertheless clear that Kettilby dealt with a broad range of criminal offences, mostly petty but some serious.

  • 22 King (2006, 165, fn.1), Walker (2003, 4-5), van der Heijden and Pluskota (2018, 661-662), Godfrey (...)
  • 23 For England, important work includes Beattie (1975), Zedner (1991), Kermode and Walker (1994), Wa (...)

14Significantly, a large number of female offenders, 761 in total, came before the Southwark Justice, and they accounted for a considerable percentage, 42.7%, of all defendants. Of those whose offences are known, most were charged with vagrancy, but considerable numbers were also accused of violence and property or felony offences. Early histories of crime and criminal justice tended to focus almost exclusively on male criminality, and they neglected to interrogate the relationship between judicial outcomes and gender.22 Research on female criminality and on gender and criminal justice has developed considerably since the 1990s, however, and female crime is no longer viewed as “marginal, exceptional, and unimportant” (Godfrey, 2014, 165).23 A central and long-standing concern within the field revolves around long-term patterns of female involvement in the criminal process.

  • 24 King (2006, 196), van der Heijden and Koningsberger (2013, 102), G. Smith (2014, 147-150).
  • 25 One of the earliest recognitions that female crime rate in England, 1660-1800, was not stable was (...)
  • 26 Their evidence for England challenged most convincingly by King (2006, 150, 196-220).

15Historians and criminologists alike agree that women typically account for a smaller proportion of recorded offences than men, but there continues to be disagreement over patterns of change across time.24 In particular, did female crime rates decline in the eighteenth and nineteenth century, and if so, at what pace and why? Until the 1990s, most historians and criminologists posited that women’s share of recorded crime had been relatively stable throughout Europe from the Middle Ages onward until the twentieth century when it increased (Heidensohn, 1989, 87; Palk, 2001, 10-11).25 This view was challenged by Malcolm Feeley and Deborah Little, who argued that before 1750 females had accounted for a larger proportion of defendants tried, but that the eighteenth century saw the “vanishing” of women from the criminal justice system (1991). While initially embraced with much enthusiasm, this view has come under sustained criticism. First, there was considerable regional variation in rates of female criminality, belying a universal narrative; second, the numbers and proportion of women tried fluctuated continuously, and in some places grew, after 1750; and third, historians have suggested that rather than “vanishing”, women were increasingly tried at lower courts, which were not sampled by Feeley and Little.26

  • 27 Females made up 30.12% of defendants between 1775-81. Old Bailey Proceedings Online (hereafter O. (...)

16European historians have found high numbers and percentages of female defendants before lower criminal courts. In Rotterdam, for example, although women accounted for only a small portion (6%) of violent crime prosecuted at the criminal court in 1700-1750, they made up 36% of defendants listed in the fight books, records of less serious crime dealt with by the correctional courts, in 1700-1795 (van der Heijden, 2013, 77, 83-85; van der Heijden, 2016, 84-86). The evidence from Southwark supports the view that there was no long-term, general decline in rates of female defendants coming before the courts in eighteenth-century London. Further, by comparison with the Old Bailey, Southwark summary court saw a greater percentage of female defendants, the vast majority of whom were never passed on to a higher court for trial.27

Resolution by arbitration and summary justice

17The outcome of examinations before Kettilby are listed on Table II below. With only 2% of outcomes unknown, we can say with certainty that Kettilby’s practice was essentially arbitrational. Taken together, the evidence from Kettilby’s notebook and the City court books point towards a City-wide effort to resolve cases summarily, usually without applying formal sanctions. These findings provide further evidence to substantiate historians’ contention that, at the summary level, informal settlement was the norm (King, 2006, 27, 29) (Table II).

  • 28 Table I (discharge + discharge with relief), Gray (2006, 45).

18When an individual came before Kettilby accused of a criminal offence, the most common outcome was a dismissal, usually the result of the parties reaching an informal agreement. This occurred in 65% of property accusations, 82% of violent accusations and 96% of unspecified offences. This rate of discharge for property offenders is notably high, especially in comparison with that at Guildhall and Mansion House in 1784-1796, where only 36.7% were dismissed after examination (Gray, 2006, 139). Regulatory offences marked an exception in Kettilby’s general practice: only 48.7% of offenders accused of a regulatory offence saw their charges dismissed or resolved informally. In general, though, Kettilby was considerably more willing to discharge offenders than his peers at Guildhall and Mansion House, where 59.4% of cases were dismissed compared to 78.5% before Kettilby.28 Finally, while the vast majority of both men and women at Southwark were discharged, a comparison of the rate of discharge by gender, as in Table III, shows, men were dismissed at a higher rate, with 82% discharged compared 73% of women.

19In resolving the vast majority of accusations summarily, Kettilby was acting in accordance with the legal standards of the day and with popular expectations of justice. Contemporary legal commentators and handbooks urged magistrates to work as mediators or peacemakers, reconciling the disputants, healing social ruptures and preventing trivial or vexatious cases from troubling the higher courts (King, 2004, 147-50). Both less expensive and less divisive to community relations, this approach to legal settlement appealed widely (Gray, 2009, 28).

Table II. Outcomes of Examinations at Southwark Town Hall, 1776-1781

Settled and Discharged or Dismissed

Discharged and Provided Casual Relief

Committed for Trial

Summary Conviction

Other

Unknown

Total

Property Offence

148

0

75

12

0

12

247

Felony

49

0

2

1

0

3

55

Violence Offence

229

0

43

2

1

3

278

Regulatory Offence

Vagrancy

19

67

0

93

52

1

232

Employment

18

0

0

1

0

0

19

Social and Economic Regulation

48

0

3

9

0

2

62

Impressment Examination

38

0

0

0

4

34

76

Not Specified

784

0

1

13

1

15

814

Total

1333

67

124

131

58

70

1783

% of Total

74.8%

3.8%

7.0%

7.3%

3.3%

3.9%

100.0%

Source: L.M.A., CLA/031/001, Record of Business done before the Southwark Justice.

Note: a) Casual relief refers to individual charged under the Vagrancy Act who were discharged by Kettilby and provided with small sums of money. He probably gave out more casual relief than is reflected in the table above. He kept a separate list of these individuals, only one page of which survives and was stuck on the back of the record book. This sheet only lists relief provided in 1780 and 1781. B) “Other”: violent other was discharged on recognizance; the vagrancy others were passed to their place of settlement; the impressed others were passed to the military commissioners to be impressed and outcome of those hearings are unknown.

Table III. Rate of Discharge by Gender at Southwark, 1776-1781

Discharged

Total Charged

% Discharged

Males

816

999

81.7%

Females

555

761

72.9%

Source: L.M.A., CLA/031/03/001, Record of Business done before the Southwark Justice.

  • 29 Burn (1772, 363).

20In the case of felonies, however, a magistrate’s role was considerably more restricted. The Marian statute of 1555, which set out pretrial procedure, required magistrates to examine a defendant, the accuser(s) and any witnesses about the charges, to jail (or less commonly bail) the accused to await trial, and to bind over the prosecutors and witnesses to carry forward the prosecution in court.29 Within this system, as John Langbein has detailed, preliminary hearings served to gather evidence that would prove the accused’s guilt at jury trial (2004, 40-45). The Marian statutes did not afford magistrates much discretion in applying these rules, and as John Beattie’s analysis of magisterial business conducted by City lords mayor in the 1690s has shown, justices usually adhered closely to statute (2001, 95-96).

  • 30 Search for evidence expanded even further under John Fielding who pioneered routine re-examinatio (...)
  • 31 On this change see, Beattie (2001, 105-106) and (2007, 66-67), King (2000, 87-94) and (2006, 8).

21Summary or preliminary hearings were transformed in the early decades of the eighteenth century. Rather than simply recording accusations, assembling evidence and committing the parties to trial, justices in the City of London and Middlesex began inquiring into the nature and strength of the evidence supporting an accusation, allowing defendants to put forth their own accounts, and making determinations on the quality of evidence presented and the guilt or innocence of the accused.30 With these procedural changes, the number and proportion of offenders who were dealt with informally grew considerably.31

  • 32 L.M.A., CLA/031/03/001, Record of Business done before the Southwark Justice, 4 July 1778, 4 July (...)
  • 33 L.M.A., CLA/031/03/001, Record of Business done before the Southwark Justice, 15 June 1776.
  • 34 G. Smith (2014, 69-70).
  • 35 L.M.A., CLA/031/03/001, Record of Business done before the Southwark Justice, 8 August 1780.
  • 36 L.M.A., CLA/031/03/001, Record of Business done before the Southwark Justice, E.g., 25 July, 27, (...)
  • 37 L.M.A., CLA/031/03/001, Record of Business done before the Southwark Justice, 1 and 5 December 17 (...)

22These transformations were also in evidence in Southwark where Kettilby brought his judgement to bear on all cases coming before him. Offenders were regularly dismissed by him “for want of evidence”, “proof”, or “facts not appearing” — like Margaret Logar, Sarah Ingram and Elizabeth Wood who had been accused of stealing a cloak and were discharged for “want of proof” or Daniel Smith, charged with feloniously receiving goods known to be stolen, for “want of evidence”.32 Charges brought by officers were also dismissed when the officers failed to present sufficient evidence as when Kettilby dismissed Martha Maloy and Mary Lewis, accused of being “disorderly” women, because the officers “could not prove” the fact.33 Until 1847, if an assault involved injury, justices were obliged to refer it to jury trial; Kettilby, however, often accepted that an assault had occurred, but dismissed the case after deciding the level of violence was too trivial for the courts to intervene.34 When Isaac Lawrie accused William Phillips of assault in August 1780, Kettilby dismissed the charge for “the complainant appearing not to be much hurt”.35 Likewise, in instances where Kettilby deemed an assault “frivolous”, the desire of the victim to prosecute was ignored and the evidence presented to substantiate the claim ruled insufficient.36 Felony charges were widely dismissed too. Of the 55 persons accused of a felony, only two were committed for trial as directed by the Marian rules (see Table II). Another, Elizabeth Napper, was summarily convicted and imprisoned in Kingston Bridewell for one month under the Vagrancy Acts. 37All others were discharged, many explicitly for lack of evidence, and others because the prosecutor refused to prosecute.

  • 38 L.M.A., CLA/031/03/001, Record of Business done before the Southwark Justice, 30 September 1778.
  • 39 L.M.A., CLA/031/03/001, Record of Business done before the Southwark Justice, 25 May 1776.

23Kettilby allowed, or perhaps encouraged, the accused to find and present counterevidence at this pretrial stage, and he regularly reviewed and made decisions based on such evidence. In September 1778, for example, he issued a warrant for the arrest of Jonathan Rumley, accused by Elizabeth Wakes of an assault, but when two witnesses appeared in court and swore that Rumley did not commit the offence, Kettilby dismissed Rumley noting in the record that the charge was “proved a Negative”.38 Similarly, Kettilby discharged Richard Reeves and Francis Yard, apprehended by a constable on suspicion of stealing bacon, when they were “proved Innocent” during an examination.39

  • 40 L.M.A., CLA/031/03/001, Record of Business done before the Southwark Justice, 8 and 24 November 1 (...)

24Sometimes Kettilby helped victims investigate crimes. For example, when two puncheons, holding 180 gallons of rum, went missing from the Southwark warehouses of brandy-merchants, William Timson and Robert Jones, Kettilby coordinated with the Union Hall rotation office to seek out the culprits and had all men arrested in connection with the theft brought to him for questioning. Over a series of hearings between 8 and 24 November 1777, he interrogated four different men — one of whom he dismissed for lack of evidence, two he committed for trial, and another he imprisoned to give evidence at trial.40

  • 41 Hay (1983, 167), King (2001, 17). Hay found more than 80% of all criminal cases prosecuted by pri (...)
  • 42 For an overview of socio-legal historical research into “the uses of justice” and a sample of sch (...)

25Though this section has focused on how the justice shaped summary hearings, justices alone did not determine the outcome of examinations. In a system without a public prosecutor, victims were responsible for initiating judicial proceedings.41 It was they, not magistrates or policing officials, who ultimately decided whether or not a conflict would be brought before a court, and once in court, prosecutors continued to play the driving role. Consequently, the ways in which ordinary people resorted to and made use of the courts — “the uses of justice” — largely determined their role and nature. As Martin Dinges has contended, institutions of justice should be viewed as “instruments of people using the judicial system to help settle a personal conflict” as well as “instruments in the hands of the authorities” (2004, 160).42

The role of victims and prosecutors

26In Southwark, victims resorted to the summary court for a variety of different reasons, but one dominant theme is that they rarely did so in order to initiate formal prosecution hearings. Therefore, a majority of charges were dropped, usually “by consent” of the parties, “at request” of the complainant, at the “prosecutor not appearing”, with the prosecutor “refusing to prosecute” or “refusing to prove the fact”.

  • 43 L.M.A., CLA/031/03/001, Record of Business done before the Southwark Justice, 4 August 1780.
  • 44 L.M.A., CLA/031/03/001, Record of Business done before the Southwark Justice, 22 April 1776.

27Some applied to a magistrate to pressure someone into doing something, like honoring a contract. When John Frost failed to pay Ann Cullis the ten shillings he owed her, for example, she requested Kettilby summon him before the court. Frost’s wife appeared in his place and, faced with the possibility of formal legal action, promptly “paid her the money”, after which Cullis dropped her complaint.43 Applying to the summary courts was, therefore, a relatively inexpensive and quick way for an offended party to gain the upper hand in ongoing, out-of-court negotiations. This was presumably why James Steen’s landlord charged him with bull running, setting angry bulls loose in the streets for crowds to chase. The landlord was unconcerned with disciplining Steen; rather, he wanted Steen to move the bull away from his rented lodgings. He used the threat of prosecution to secure Steen’s promise to “keep the bull at Toolys [sic] gateway” instead and dropped the charge.44

  • 45 L.M.A., CLA/031/03/001, Record of Business done before the Southwark Justice, 29 July 1778.

28In the case of property offences, many victims sought the return of their goods or compensation for their losses rather than the offender’s conviction. If these objectives could be achieved in negotiations before trial, then the charge was usually abandoned. In July 1778, for example, John Purcell charged John Probert under oath with pawning fifteen coats, waistcoats and silver buttons. Probert was initially committed to the Borough Compter to await trial, but when, during a subsequent examination, Probert returned the goods “in the presence of the justice”, Purcell “refused to prosecute” and requested that Probert be discharged.45 As has been touched on already, some victims of theft also approached the court for assistance in identifying the right culprit.

  • 46 L.M.A., CLA/031/03/001, Record of Business done before the Southwark Justice 8 July 1778, 2 Febru (...)
  • 47 Similarly, King has argued that prosecutors may have seen imprisonment on remand waiting for tria (...)

29Frequently, an apology and a promise to behave better in future was enough to settle a dispute, as in the case of Thomas Ludlow, who was charged by a Mistress Blanchard with stealing port but was discharged after he apologised in court. For others, the incarceration of the accused for a day or so while waiting to be examined or re-examined by the justice may have sufficed as punishment as many prosecutors dropped the charges at this stage. For example, in the evening of 7 July 1778, a constable arrested Elizabeth Parker for insulting him, but when she came before Kettilby the next day, he refused to press charges, and, with his consent, she was released.46 This strategic use of pretrial detention may have been a particularly attractive option for officers as well as for poorer prosecutors — two groups who, for different reasons, may not have wished to assume the expense of a full trial.47

  • 48 For the courts’ use of impressment as an alternative to trial see: Rogers (1994, 102-113), Conway (...)
  • 49 L.M.A., CLA/031/03/001, Record of Business done before the Southwark Justice, 13 October 1778. Bu (...)
  • 50 L.M.A., CLA/031/03/001, Record of Business done before the Southwark Justice, 27 September 1779.
  • 51 L.M.A., CLA/031/03/001, Record of Business done before the Southwark Justice, 31 January and 1 Fe (...)

30Conversely, some victims were set on punishing those who had offended them. Yet, even in these instances, formal prosecution was not inevitable. In wartime, if the accused was male, some victims were happy to see him impressed into the military, as in the case of William Dunker at the start. From 1776 to 1781, Kettilby dismissed accusations against at least 58 men on the condition that they join the armed forces.48 Other victims sought to secure a speedy, relatively inexpensive and certain conviction under summary jurisdiction. In October 1778, Edward Hurbert alleged that Garrett Burn had attempted to pick his pocket of a handkerchief; rather than indict Burn, Kettilby convicted him on Hurbert’s oath as a disorderly person under the Vagrancy Acts.49 In this case and others, Kettilby — with the victim’s consent or perhaps urging — used the Vagrancy Acts to shield the conviction of offenders whose offences did not fall under summary jurisdiction. Sometimes Kettilby did not bother to reframe his convictions, like when he summarily imprisoned Thomas Bigg on suspicion of stealing five pounds of butter.50 Kettilby also used the Vagrancy Acts as a fallback to convict offenders when more serious charges against them could not be sustained. For example, in January 1781, Kettilby issued a warrant against Hester Mann for assault at the request of the victim Ann Wilkins. However, after examining Mann, Kettilby committed her to the house of correction as a disorderly person instead of indicting her for assault.51

31By deciding when to bring their disputes before the court, prosecutors in Southwark helped determine the summary court’s role in regulating crime and personal disputes, and by pressing for certain outcomes, they shaped the nature of justice dispensed. For the Borough’s inhabitants, the summary court provided a forum for parties to present their grievances and to negotiate a resolution. Application to the court was merely one way to resolve a dispute, but for many, it clearly proved useful.

32When, then, an individual was brought before Kettilby accused of a crime, it was overwhelmingly likely that he or she would be dismissed either because the parties involved came to an informal resolution or because the charge was rejected. This section shifts away from the arbitrational aspects of summary justice to focus instead on those instances in which informal methods of resolution broke down or proved insufficient. In such cases, the offender was either committed for jury trial or convicted summarily. This section specifically considers the extent to which the offender’s gender influenced the decision to take formal action.

Gender and sentencing decisions

  • 52 King (2006, 165-226, especially 165-186) and (2000, 196-202), Pluskota (2018, 17-19). Pluskota al (...)
  • 53 Beattie (1986, 437), King (2006, 180), van der Heijden and Pluskota (2015), Pluskota (2018).

33Historians generally agree that gender played a powerful role in shaping prosecution and sentencing practices across western Europe. With respect to the higher courts, numerous studies, researching patterns in England, France, Italy and the Netherlands, have found a gender bias towards women with the result that female defendants generally received “noticeably more lenient treatment” than males.52 There is less agreement as to how gender impacted outcomes at the lower courts. Some have argued that gender bias was less prevalent in them. Marion Pluskota, for instance, has recently suggested that nineteenth-century correctional courts in Amsterdam, Le Havre and Bologna took a “gender-neutral approach” toward petty criminality for at these courts female defendants were convicted at similar rates to men (2018). Research on the quarter sessions in eighteenth-century Essex and Surrey, the correctional courts in nineteenth-century Dijon, and the prosecution of violence at the correctional courts in nineteenth-century Netherlands have similarly found relatively little difference in the outcome of offenders based on sex.53

  • 54 Gray also found evidence of harsher treatment towards women in nineteenth-century Bedfordshire. G (...)

34Elsewhere, however, historians have found evidence of gender bias at the lower courts, some of which points to more lenient treatment of females and some to harsher. Peter King has contended that, on the one hand, “women had the advantage at virtually every stage of the pretrial process”, but, on the other, he has found that in some parts of England, notably Cornwall, females received harsher treatment at the summary level (2006, 200). Drew Gray’s findings on the City summary courts suggest that the extent to which treatment differed depended on the type of offence alleged. He found female property offenders received considerably more lenient treatment than their male counterparts, but that women accused of violence were treated more harshly (Gray, 2009, 142-143, 176-177).54 Finally, Deirdre Palk and Barry Godfrey, et.al, have separately found differences in the conviction rates of men and women at the summary level, but contend that these stemmed from gendered contexts of offending rather than a bias towards one gender or the other (Godfrey et al., 2005, 706). As Palk has concluded, “it does not require a great leap of deduction to understand why women would be more leniently treated in the summary courts. Their offending behaviour was so different from men’s. They had not done the same things” (2001, 62).

  • 55 Men and women stole similar things too. Both were accused of stealing clothes (including ribbon a (...)

35At Southwark Town Hall, the decision to send an offender on to jury trial was not greatly affected by the offender’s gender though the extent of bias varied depending on the type of crime alleged. As Table IV shows, most offenders committed for trial were male, and the most common offences for which defendants (male and female) were indicted were property crime, predominantly theft, followed by assault.55

Table IV. Offenders Committed for Trial by Gender, 1776-1781

Males

% of males

Females

% of females

Total

% Total

Violent

29

36.3%

14

30.4%

43

34.1%

Property

48

60.0%

29

63.0%

77

61.1%

Felony

0

0.0%

2

4.3%

2

1.6%

Nuisance

2

2.5%

0

0.0%

2

1.6%

Prison Escape

1

1.3%

0

0.0%

1

0.8%

Unspecified

0

0.0%

1

2.2%

1

0.8%

80

100.0%

46

100.0%

126

100.0%

Source: L.M.A., CLA/031/001, Record of Business done before the Southwark Justice.

36Men, however, were only slightly more likely than women to be sent to trial: 80 men or 8% of male offenders and 46 women or 6% of female offenders before Kettilby between 1776 and 1781 were committed for trial. Further, the table relating the rate of commitment for trial to offence and gender suggests that there was little difference in the treatment of men and women accused of assault, though women seem to have been treated somewhat more harshly with a slightly greater percentage (16.9%) committed to trial compared to violent men (15.2%).

Table V. Rate of Commitment for Trial by Offence and Gender, 1776-1781

Males

Females

Sent on to Trial

Total Charged

% to Trial

Sent on to Trial

Total Charged

% to Trial

Property

48

160

30.0%

14

83

16.9%

Felony

0

20

0.0%

29

86

33.7%

Violence

29

191

15.2%

2

34

5.9%

Regulatory

Vagrancy

0

31

0

0

199

0.0%

Employment

0

14

0

0

4

0.0%

Social and Economic Regulation

3

53

3

0

9

0.0%

Not Specified

0

454

0

1

346

0.3%

Total

80

923

8.7%

46

761

6.0%

Source: LMA, CLA/031/001, Record of Business done before the Southwark Justice.

  • 56 Most felonies tried at the Old Bailey were property offences in this period, so it is likely that (...)

37There was a larger difference in the treatment of property offenders — again, to the benefit of men. 30% of male property offenders were committed for trial compared to 33.7% of female property offenders, and moreover, while no men accused of felony were sent on to trial, about 6% of women were.56 This practice contrasted sharply with that at Guildhall and Mansion House where, in 1784-1796, female property offenders escaped jury trial almost twice as frequently as their male counterparts (Gray, 2006, 143).

38As so few offenders were sent on to trial at the quarter or assize sessions from Southwark, these findings are necessarily tentative. They do, however, reveal that women were not treated more leniently than men, and more generally, they point towards an absence of gender bias in the decision to pass an offender on for jury trial. Where male and female offenders received clearly different treatment, this appears to have stemmed primarily from differences in offending behaviour by gender, as Palk argued. Commitment for trial for a regulatory offence, for example, was extremely rare, and only those charged with either escaping from prison or a nuisance were sent on. As only men were accused of these crimes, so only men were committed for trial.

39The patterns of summary convictions were more gendered, as Table IV highlights. Many more women were summarily convicted by Kettilby than men: 101 female defendants, or 77.1% of those convicted, compared to 30 males. Overall, female defendants were four times more likely than males to be summarily convicted with 3% of males so sentenced compared to 13.3% of females. This vast difference in the treatment of male and female offenders stemmed primarily from the policing and prosecution of vagrancy in Southwark.

  • 57 39 Eliz I, c.4, 13 Anne c.26, 17 Geo II c.5, 32 Geo III c.53, 3 Geo IV c.40.
  • 58 This continued reliance may have been common across England until the later nineteenth century. I (...)
  • 59 Beattie (2001, 26-29, 97), B. Smith (1996, 108-109) and (2005), Innes (1987, 75, 88-89).
  • 60 Gray (2006, 47-50), Darby (2015, 3, 314). Darby sampled the notebooks of 13 rural magistrates and (...)

40At Southwark Town Hall, summary conviction was mainly used to deal with vagrancy, which accounted for 71% of the 131 convictions. The Vagrancy Acts criminalised a broad spectrum of behaviours and states including begging, sleeping outdoors, telling fortunes, being “idle”, acting “disorderly”, wearing Egyptian clothes, and in later amendments, persons found with intent to steal, offenders against the lottery laws, exposing the person, and more.57 The particular circumstances under which “vagrants” in Southwark were apprehended are unclear as Kettilby based his summary convictions on long-standing, broadly-framed Elizabethan and Jacobean laws with most of those convicted described in vague terms as being “loose, idle and disorderly” or simply “disorderly” persons.58 Though historians have highlighted the extension of summary jurisdiction over property offences across eighteenth-century London, at Southwark, a conviction was rare for both male and female property offenders.59 Only 3.9% of males and 5% of females charged with a property or felony offence were summarily convicted — well below the rate of property offenders convicted at the City justice rooms in 1784-1789 as well as those convicted by justices in rural England across the long eighteenth century.60 Conviction was even rarer for assault — only one woman and one man accounting for 1.2% of females charged with a violent offence and 0.5% of males.

  • 61 Rogers (1991, 133), Hitchcock et al. (2014, 517, 519-520).

41Offenders against the Vagrancy Acts, then, were considerably more likely to be summarily convicted than any other kind of offender, and in Southwark, those arrested and charged with vagrancy were disproportionately female. Between 1776 and 1781, 209 women were brought to the summary court for vagrancy compared to only 31 men. This gendered policing of vagrancy was not unique to Southwark: across the eighteenth century, most of those summarily convicted for vagrancy in the City, Middlesex and Westminster were women, who consequently dominated populations at houses of correction and lists of vagrants removed to their place of settlement.61

  • 62 Field (2018, 258), King (1996, 70-71, 75-76), Henderson (1992, 43) and (1999, 18), Earle (1989).
  • 63 Rogers (1991, 133-134), Hitchcock, Crymble, Falcini (2014, 517), Field (2018, 258).
  • 64 Gowing (2000), Miller (2019).
  • 65 Henderson (1999, 80-83), Carlin (1996), Karras (1989), Kelly (2000).
  • 66 On the links between domestic service and prostitution, King (1996, 77), Henderson (1999, 14-16).
  • 67 For the movement in the early-eighteenth century, see Shoemaker (2001, 144-166). For the later mo (...)

42The predominance of women arrested for vagrancy was probably related to Southwark’s demographic and economic makeup, but it also suggests that the vagrancy laws were deployed especially to regulate female conduct and migration. As with the rest of the metropolis, many of the women living and working in Southwark were immigrants, and a large proportion worked in domestic service.62 The more limited employment opportunities for women, the precarious and insecure nature of domestic service, and the irregular, seasonal and poorly-paid nature of other forms of casual employment in which women were engaged made them particularly vulnerable to destitution, and therefore, to arrest as vagrants.63 However, very few women were charged explicitly with being “vagrants”. The vast majority were arrested as “disorderly” persons, and in Southwark, these women were probably suspected of prostitution. Femininity and female sexuality had long been associated with disorder across London, but Southwark, in particular, had a long-standing reputation for prostitution.64 References to its stews, or brothels, date from as early as 1162, and it was in Southwark, on the Bishop of Winchester’s land, where England’s only officially recognised brothels were located.65 Though the stews were suppressed in the sixteenth century, Southwark’s reputation for vice and criminality persisted were into the nineteenth century, likely bolstered by the high concentration of pubs and gin-shops, theatres, bear-baiting rings, circuses and fairs. Many women in Southwark may well have relied on prostitution as a source of income, especially given the fluid and insecure nature of much of their employment.66 It is also possible that the late-eighteenth-century resurgence of the reformation of manners movement further intensified the policing of single, independent women on Southwark’s streets.67

Table VI. Summary Convictions, 1776-1781

Imprisonment

Fine

Total

Total

%

Male

Female

Male

Female

Male

Female

Vagrancy

Disorderly or loose, idle and disorderly

11

64

0

0

11

82

75

71.0%

Disorderly person taken up in a disorderly house

0

7

0

0

7

Incorrigible rogues

0

3

0

0

3

Vagrant

0

8

0

0

8

Property

Unlawful receiving

0

1

0

0

7

6

1

9.9%

Unlawful pawning

0

1

0

0

1

Purloining or embezzling

0

2

1

0

3

Picking pockets

3

0

0

0

3

Suspicion stealing

3

0

0

0

3

Suspicion of felony

0

1

0

0

1

Disorderly shoplifter

0

1

0

0

1

Regulatory

Employment

1

0

0

0

10

0

1

7.6%

Profanely swearing oaths

0

0

4

0

4

Insulting officer

0

0

1

0

1

False imprisonment

0

0

2

0

2

Hackney coach offence

0

0

1

0

1

Loaves deficient in weight

0

0

1

0

1

Violent

Assault

0

0

1

0

1

1

1

1.5%

Disorderly assault

0

1

0

0

1

Not Specified

1

12

0

0

1

12

13

9.9%

19

101

11

0

30

101

131

100.0%

Source: L.M.A., CLA/031/03/001, Record of Business Done before the Southwark Justice.

43Kettilby took an especially hard line against female disorderliness. A greater number and percentage of women charged with vagrancy at Southwark saw formal action taken against them not only in comparison with males accused of vagrancy at Southwark but also with women so charged before other City justices. The outcomes of male and female defendants charged with vagrancy are tabulated below.

44At Southwark, only 36% of women were dismissed, while 41% were summarily imprisoned, and 23% were passed directly back to their place of settlement. By contrast, 48% of men saw the charges against them dismissed, 35% were summarily imprisoned, and 16% were passed. At Guildhall, the justices discharged a majority of women accused of being “disorderly” persons. Tony Henderson found 57.8% of 1076 “disorderly” women dismissed and 25.5% or 274 summarily imprisoned between 1752 and 1796 while Gray found 82.4% of the 57 “disorderly” women in 1762, 1778 and 1780 discharged and 14% imprisoned (Henderson, 1992, 243-244; Gray, 2006, 218).

Table VII. Outcomes of Vagrancy Changes by Gender, 1776-1781

Males

%

Females

%

Discharged

1

3.2%

14

7.0%

Discharged: Casual Relief

10

32.3%

57

28.6%

Discharged: Impressment

4

12.9%

0

0.0%

Summary Conviction: Imprisonment

11

35.5%

82

41.2%

Passed back to Settlement

5

16.1%

45

22.6%

Unknown

0

0.0%

1

0.5%

31

100.0%

199

100.0%

Source: L.M.A., CLA/031/03/001, Record of Business Done before the Southwark Justice.

Table VIII. Sentence Length for Convicted Vagrants, 1776-1781

Males

%

Females

%

14 days

2

18.2%

30

36.6%

21 days

0

0.0%

1

1.2%

1 month

8

72.7%

45

54.9%

1 month and whipped

0

0.0%

4

4.9%

Unknown

1

9.1%

2

2.4%

11

100.0%

82

100.0%

Source: L.M.A., CLA/031/03/001, Record of Business Done by the Southwark Justice.

  • 68 For a discussion of gender and whipping, see Smith (1999, 395-414).

45Kettilby also sentenced women to longer sentences in prison than did the justices at Guildhall. The table displaying the time for which men and women convicted of vagrancy at Southwark were imprisoned shows that most women (49 or 59.7%) received a one month’s sentence; by contrast, at Guildhall, over 90% of women were sentenced to a period under a month (Henderson, 1992, 247). Still, compared to male vagrants at Southwark, a greater percentage of females at Southwark received a shorter prison sentence of between 14 and 21 days. Yet, corporal punishment was reserved for female vagrants. While no men were ordered to be whipped, seven women were summarily imprisoned and whipped: four for “disorderly” behaviour, two for embezzling or purloining fur, and one for unlawful pawning.68

  • 69 L.M.A., CLA/031/03/001, Record of Business done before the Southwark Justice, 9 January 1779, 9 J (...)

46Many of those summarily convicted had appeared previously before Kettilby charged with at least one other offence: 10 men, 52.6% of men convicted, and 60 women, 59% of women convicted. The high proportion of “old” offenders in his convictions suggests Kettilby was generally willing, if the prosecutor agreed, to let off first-time, minor offenders. This leniency, however, was limited, and those who repeatedly came before him were eventually punished. Sarah Ingram, for example, saw two unspecified charges (probably related to prostitution) against her dismissed in 1779 after she promised to behave better before she was convicted in January 1780 for an unknown offence and sentenced to one month’s hard labour in a bridewell. Two further accusations of disorderliness followed in 1780, and each time, Ingram was convicted and sentenced to one month in a house of correction. Although Kettilby ordered that she be passed from St. Olave to St. Saviour, the adjoining parish, she returned and in January 1781 was convicted yet again as a disorderly woman and sentenced to one month in a house of correction. After her release, she was passed. As Ingram’s experience highlights, Kettilby generally refrained from sentencing repeat offenders to longer periods of imprisonment, despite his power to do so under the Vagrancy Acts. He did, however, work with parish officers to remove her from the parish when she continued to offend “respectable” morals.69

  • 70 L.M.A., CLA/031/03/001, Record of Business done before the Southwark Justice, 28 March 1777.
  • 71 L.M.A., CLA/031/03/001, Record of Business done before the Southwark Justice, 11 and 13 May 1776.

47If the accused could find someone to vouch for their character, their chances of being discharged increased. In March 1777, Thomas March and William Westcoate were arrested in a disorderly house in the company of disorderly women, but when their master appeared in court to give them “a character reference”, the men were dismissed.70 While some were released on the “recommendation” of their masters, others were released at their “application”, like Edward Catheroll, apprehended on suspicion of stealing coals, whose prosecutor agreed to drop the charged on his master “promising for him”.71 Possibly, women found it harder to secure a character reference, especially if many of those who were convicted were immigrants, out of employment, or working as prostitutes, and therefore, limited in their ability to call on family or employers to support them.

48Finally, the greater number and proportion of women compared to men summarily convicted at Southwark was probably related to the availability of alternative methods of informal punishment for male offenders. As discussed above, a considerable number of male offenders were discharged on condition that they join the armed forces. Relatedly, soldiers and seamen accused of all kinds of offences were readily dismissed with Kettilby prioritising their return to the armed forces over their prosecution. In these ways, male defendants who the prosecutor or Kettilby wished to punish and who might have been indicted or summarily convicted were instead channeled into the armed forces, an option that was not open to female offenders.

49The eighteenth-century saw a great expansion in the number of offences that could be heard summarily. Nevertheless, Kettilby generally refrained from using his powers under summary jurisdiction to try and convict offenders, unless they were charged under the Vagrancy Acts. Instead, he preferred overwhelmingly to resolve the dispute informally, or less commonly, if mediation proved impossible, to send the offender for jury trial. For the most part, he acted as an arbiter or referee helping to end quarrels. His reticence to convict offenders summarily contrasted sharply with the practice of justices at Guildhall and Mansion House, who, as we have seen, were more willing to summarily convict property and violent offenders.

50While Kettilby’s treatment of property and violent offenders suggested a gender-neutral approach to petty criminal, this was contrasted by the policing and prosecution of vagrancy. In the Borough, the Vagrancy Acts were used overwhelmingly to police female rather than male behaviour, and Kettilby too showed a greater willingness to take formal action against females so charged. King has suggested that the comparatively lenient outcomes for women on trial in England may have been due, in part, to the willingness of the jury to consider economic hardship as a mitigating factor (2006, 192). The Southwark justice was not, it seems, similarly inclined, despite the challenges many women in Southwark faced in trying to make a living. Possibly, the absence of judicial leniency was linked to the large numbers of women before the court and to Southwark’s reputation for immorality — factors that may have caused authorities to view female offenders as a serious threat. Perhaps, as Palk has argued with respect to the large proportion of women sentenced to death for shoplifting at the Old Bailey in 1780-1820, judicial paternalism operated to a lesser extent when women were no longer a minority in court (2001, 109).

The decline of summary justice?

  • 72 B. Smith (1996, ch.8), Emsley (2005, 208).
  • 73 B. Smith (1996, 442), Bentley (1998, 21).

51It has frequently been hypothesized that, by the close of the eighteenth-century, the “golden age” of discretionary, participatory justice was beginning to come to an end. The period saw growing criticism over the extent of summary jurisdiction and the broad powers that justices had assumed. In London especially, where lawyers and the press were increasingly in attendance, King has posited that the openness of summary hearings may have decreased justices’ capacity to act as informal mediators and prompted them to apply the law more carefully (King, 2004, 166-168; King, 2006, 33-34). The justices’ room for maneuver may have contracted further between 1825 and 1855 as a number of statutes were enacted that formalised the role of the summary courts in prosecuting assault, property and felony crime and as a standard set of procedures for magistrates operating outside of sessions was established.72 The changing character of the magistracy may also have prompted a decline of arbitration at the summary level. In 1792, in response to a perceived increase in crime and a shortage of willing and competent magistrates in London, Parliament passed the Middlesex Justices Act setting up six magistrates’ offices, in addition to Bow Street, each run by three stipendiary or salaried magistrates, who sat at set times of the day to transact judicial business. Though the purpose of this Act was to compensate those members of the commission who were willing to act as justices, and not to create a new and separate class of professional magistrates, this is increasingly what happened (Paley, 1983, 262). From 1822, all stipendiary magistrates in London were trained barristers.73

  • 74 The best work on nineteenth-century London public offices/police courts remains Davis (1984, 1985 (...)

52Historians agree that, together, these various factors had the effect of formalizing and standardizing summary proceedings, which increasingly reduced the scope for arbitration and informal methods of dispute resolution. However, we know little about the precise details, patterns and timings of these changes as only a handful of detailed examinations into the nineteenth-century summary courts have been conducted, and for London, almost all of this work has focused on the stipendiary offices.74 This final section explores the operation of summary proceedings outside the stipendiary offices, before magistrates who were not professional barristers, and considers how and to what extent the changes described above affected proceedings. Specifically, it will examine whether prosecutors used the court as they did in the late-eighteenth century and whether justices took formal action more readily. As in the previous section, it will also consider how gender shaped proceedings. While this section is based largely on a quantitative analysis of the court register from 1836, I also draw on newspaper reports of Town Hall proceedings, parliamentary reports, and the Borough Compter’s prison records to form a fuller picture of the court’s operation.

  • 75 This excludes £100/year in lieu of rent. The magistrate was also allowed a clerk, two marshalmen, (...)

53After James Kettilby died in May 1785, the office of Justice of the Bridge Yard declined precipitously as the Surrey commission reignited their attempts to deny the City many of its chartered rights, including the holding of sessions in the Borough. By 1786 these had already become a “virtual formality”. Further, the commission refused to allow the newly appointed Southwark justice, Robert Peckham, into their commission, and subsequently, Southwark Town Hall fell into disuse (Johnson, 1969, 261-264). Southwark continued without a resident magistrate until 1814 when Peckham died and the City aldermen moved to revive the office. The aldermen decided the Southwark justice would henceforth sit two hours every weekday for an annual salary of £500, and that those appointed would have “passed the chair” — served previously as Lord Mayor (Johnson, 1969, 265-266).75 From 1830, to ensure a justice sat daily, the position was split between three men, but the system nevertheless broke down in 1835 when two justices died and another retired of old age. Rather than appointing new permanent magistrates, the Aldermen elected to set up a rotation system, akin to that at Guildhall, where all aldermen past the chair would serve a week’s turn as Southwark justice (Johnson, 1969, 170).

  • 76 Field (2018, 245-6), PP (1828), Select Committee on the Police of the Metropolis, 145.

54Although Town Hall was vacant for much of the first decade of the nineteenth century, by 1836, the Aldermen stationed there heard at least 1,697 full hearings — an astounding increase from 1776-1781. The range of offences that came before the court and the gender of the accused are laid out in Table IX below. Clearly, the establishment of Union Hall as a stipendiary magistrate’s office in 1792 did not render Southwark Town Hall redundant. Indeed, it seems the large population of the Borough, around 80,000 by 1811 and growing to 105,000 at its peak in 1851, necessitated an additional court, especially as the magistrates at Union Hall sat for only two full and two half days each week.76

Table IX. Examinations before Southwark Town Hall, 1836

Males

Females

Unknown

Total

%

Felony

185

140

0

325

19.2%

Property

23

6

0

29

1.7%

Assault

185

36

0

221

13.0%

Misd

Unspecified

14

10

0

24

1.4%

Coin

5

4

0

9

0.5%

Vagrancy Acts

Disorderly

611

374

2

987

58.2%

Vagrancy

38

25

2

65

3.8%

Other

14

2

0

16

0.9%

Regulatory

Employment

10

0

0

10

0.6%

Other

11

0

0

11

0.6%

1096

597

4

1697

100.0%

64.6%

35.2%

0.2%

Source: L.M.A., CLA/031/03/004, Return of prisoners brought to the Justice Room, Southwark, 1 Jan to 31 Dec 1836, their offences and how the cases were disposed of.

Note: a) “Other” regulatory acts are three bastardy charges, one prison escape, one under Baker’s Act, one for military desertion, three obstructing police, and two under Bum Boat Act. b) “Other” vagrancy for men are three deserting family, two for hawking without license, one reputed thief, and eight suspected persons. The two ‘other’ vagrant women were charged with being suspected persons.

  • 77 PP (1833), Statement of Number of Persons taken into Custody by Metropolitan Police, 1831-1832.

55Women continued to make up a considerable portion of those brought before the metropolis’ summary courts and public offices, including at Southwark, where 597 female offenders, accounting for 35.2% of all defendants, were examined in 1836. This rate of appearance roughly matched the percentage of female defendants before the twelve public offices in 1831-1832 where, on average, 37.1% of defendants were female.77 The proportions of female defendants at the summary level in London was equal to, and often greater than, those found at the lower courts in European cities like Amsterdam, Le Havre and Bologna (Pluskota, 2018, 722-724).

  • 78 All offenders committed for trial at Southwark, who can be traced in higher court records, were a (...)

56By the 1830s, vagrancy charges dominated examinations, accounting for 62.9% of the total, at Southwark summary court. As in the 1770s, most of those accused were charged as “disorderly” persons, with no further details provided, but whereas in the earlier period most persons apprehended were female, in 1836 males made up 61.9% of those charged. The proliferation of summary statutes and the greater chance that their practices could be scrutinized by the King’s Bench did not, then, prompt justices in Southwark to be more precise in their commitments. Surprisingly, only a handful of individuals were charged with a regulatory offence other than vagrancy, which either suggests that the Borough’s inhabitants chose to resolve such disputes without recourse to a magistrate or that these offences were routinely re-characterised as acts of vagrancy by the court. These findings suggest that the justices relied overwhelmingly on the vagrancy laws to discipline the urban population. The second most common offence alleged was felony — mainly property offences —, which made up 19% of examinations, followed by assault at 13%.78

57As for the nature of justice at Southwark, discretion continued to infuse the hearings and informal settlement still dominated. Table X presents the outcomes at Southwark by offence. It demonstrates that, regardless of the offence alleged, a majority of defendants were discharged without further action: 59.6% of those charged with felony or property offence; 52% of assaults; 78.8% of misdemeanors; 67.6% of vagrancy offences; 70% of employment disputes and 54.5% of other social and economic regulatory offences.

  • 79 L.M.A., CLA/031/01/007, Borough Compter Charge Book, 13-14 July 1836.
  • 80 L.M.A., CLA/031/01/007, Borough Compter Charge Book, 17-18 April, 10 August 1836.
  • 81 L.M.A., CLA/031/01/007, Borough Compter Charge Book, 7 January 1836.

58Defendants who apologised or who promised to behave better were dismissed without further action as were those who brought parents, employers or partners to vouch for them. Those who agreed to give back stolen goods or to stop their illegal activities — like William Thomas Payne, caught circulating unstamped papers in 1836 — also saw their cases dismissed, despite the crime being proven by the prosecutors (The Morning Post, 11 January 1836). Assaults, misdemeanors and some kinds of disorderly behaviour were all resolved primarily by the accused agreeing to pay damages. When Agnes Sexton accused John Samuels of assaulting her, for example, their dispute was resolved on Samuels paying Sexton 20 shillings in court after which Samuels was discharged.79 When David Jones was brought to court for a misdemeanor, he paid 13 shillings in damages and was discharged, and when John Eldriged was charged as a “disorderly” man, he paid 4s.6d. in damages and was dismissed.80 Many other cases simply note that the accused “settled with complainant” or that they had made “satisfaction”, like William Jones and Robert Thomas accused of assaulting police officers.81

Table X. Outcomes at Southwark Town Hall, 1836

Discharged

Discharged on recognizance to keep the peace

Imprisoned for want of sureties

Imprisoned or bailed for trial

Summary Imprisonment

Summary Fine

Passed to Settlement

Unknown

Total

Property

18

0

0

2

9

0

0

0

29

Felony

193

0

0

46

78

4

0

4

325

Assault

115

1

4

85

4

11

0

1

221

Misdemeanour

26

0

0

3

1

1

0

2

33

Vagrancy Acts

Disorderly

667

4

7

31

88

188

0

2

987

Vagrant

50

0

0

0

7

0

8

0

65

Other

9

0

0

0

6

1

0

0

16

Regulatory

Employment

7

0

0

0

2

0

0

1

10

Other

6

0

0

3

0

2

0

0

11

1091

5

11

170

195

207

8

10

1697

64.3%

0.3%

0.6%

10.0%

11.5%

12.2%

0.5%

0.6%

100.0%

Source: L.M.A., CLA/031/03/004, Return of prisoners brought to Justice Room, Southwark.

  • 82 PP (1828), Select Committee on the Police of the Metropolis, 239.
  • 83 Ibid., 64.
  • 84 L.M.A., CLA/031/03/004, Return of prisoners brought to Justice Room, L.M.A., CLA/031/01/007, Boro (...)

59Across the metropolis, there was a reluctance to imprison young offenders for whom imprisonment was viewed as especially corrupting. As Serjeant Pell, a Middlesex magistrate, reflected in 1828, “I cannot but think myself that it is not a likely way to bring a lad of seven, eight, nine or ten years of age, round to a good course of life, to send him to a gaol, where he shall be found in company with the most depraved…”82 If the parents of the accused came forward or the justices were able to get a good account of the accused, commented another City magistrate, “we abstain from committing them as much as possible”.83 In Southwark, many young offenders whose guilt may not have been in doubt were nevertheless “delivered” or “sent” to friends or family. Others were probably sent to reformatory-style institutions, though the nature of the surviving record makes this difficult to trace. According to the register, the court dismissed a vagrancy charge against a twelve-year-old boy on 11 March; however, the Borough Compter records show he remained in prison until 27 April when he was “delivered to his friends to be apprenticed by the Marine Society” — indicating his discharge was conditional on admission to a reformatory.84

60The court was not only for arbitration or prosecution, however; it was also an important source of advice and assistance. Newspaper accounts of proceedings at Town Hall show that some of the cases brought to the justices were initiated not to resolve a criminal dispute but to request extralegal assistance.

  • 85 The newspaper does not report on how the case ended.

61When in June 1836, for example, a shop owner, Mr. Clark, confirmed that Thomas Briant, a boy of eight, had been obtaining money and food from his shop under false pretenses, he brought the boy to Town Hall. Clark neither wanted to prosecute the boy nor recover his money; rather, he sought to help Briant, who had recently been fired from his position for theft, by “get[ting] the child into some asylum”. Uncertain of how to proceed further on his own, Clark turned to the summary court. Clark evidently expected that the justices would assist him, and indeed, they did. The presiding justice “fully concurred in the necessity of this [action]”, so he imprisoned Briant in the Borough Compter, officially for further examination of the fraud, but really so he could inquire into Briant’s situation and find him an asylum (The Standard, 22 June 1836).85

62A case from August 1828 similarly underscores the various, non-prosecutorial uses of the court. One night the watch-house keeper of St. Saviour’s discovered a twelve-year old boy sleeping in the churchyard who, when questioned, admitted to having run away from his parents in Belfast “for the purpose of gratifying an irresistible desire to see London” and stealing three bank notes, valued over £3, to cover expenses. When the watch-house keeper brought the boy to Town Hall, the magistrate directed he be accommodated in the governor’s house at the Borough Compter for safe keeping while they contacted his father. A week later, the court received a letter from the boy’s father who admitted the story was true, asked the court to overlook his son’s “childish folly”, and to put his son on board a ship bound for Belfast. As the watch-house keeper, the prosecutor, “desired to see [this request] complied with”, all charges against the boy were dropped (The Standard, 8 August 1828, 15 August 1828).

63None of these actions suggest that magistrates felt more constrained, by either the presence of lawyers and reporters in their courtrooms or the formalisation of summary proceedings, to act according to the letter of the law in the early nineteenth century. Rather, magisterial discretion remained broad, as did the discretion of prosecutors, whether private civilians or the police. As Clark’s case illustrates, even with the development of professional police forces, civilians continued to pursue and detain suspects on their own initiative. Though it has been suggested that discretion was largely confined to the new police in the nineteenth century, the Southwark evidence shows that all types of prosecutor continued to treat their criminal conflicts as private matters rather than public wrongs, and they abandoned charges as they saw fit (Churchill, 2014, 11-12). The continued willingness of justices to act as advisers and mediators, facilitating informal settlements, was probably why so many brought their concerns to the court. As Jennifer Davis has argued for the late-nineteenth century, winning “lower-class acceptance of the law” was a key purpose of the courts (1984, 314-315). To encourage the common people to rely on the law for their protection, the magistrates regularly enforced the law in ways that “accorded with more popular notions of justice” (Davis, 1985, 262).

64Moreover, justices did not only react to accusations, but actively pursued their own understandings of community justice. In March 1837, Charles Read and two other boys were charged with stealing a threepenny loaf from a local baker, who after a first hearing subsequently refused to prosecute. The magistrate, Alderman Farebrother, nevertheless questioned the boys, and after hearing their “tale of misery and great privation”, ordered officers from their respective parishes to appear before him (The Champion and Weekly Herald, 5 March 1837). Though the relieving officer of Bermondsey parish insisted that Read had no claim upon the parish, Farebrother castigated him for rejecting Read’s earlier application to the workhouse and blamed him for Read’s theft. Proclaiming it “against the law, moral and divine, to permit a fellow creature to die for want or perish in the streets”, Farebrother ordered the officer to provide for Read (The Champion and Weekly Herald, 5 March 1837). The officer continued to protest, but facing a £5 fine otherwise, he admitted Read into the workhouse. In this way, justices could act as advocates for the poor as well as advisors for those who brought suits.

65Though a majority of defendants continued to be dismissed at Southwark, the justices in 1836 were more willing than Kettilby in the 1770s-1780s to take formal action against offenders. The percentage of offenders committed for trial grew only slightly, but the percentage of those summarily convicted tripled. With 403 defendants convicted and either imprisoned or fined, summary conviction became the second most common outcome, at 23.6% of outcomes, after dismissal. The offences for which male and female defendants were convicted and the punishment they received are displayed in Table XI.

Table XI. Summary Convictions at Southwark Town Hall, 1836

Imprisonment

Fine

Total

Male

Female

Male

Female

Male

Female

Total

%

Property

5

4

0

0

5

4

9

2.2%

Felony

49

30

3

0

52

30

82

20.3%

Assault

2

2

9

2

11

4

15

3.7%

Misdemeanour

1

0

1

0

2

0

2

0.5%

Vagrancy Acts

Disorderly

4

85

144

44

148

129

277

68.7%

Vagrant

7

0

0

0

7

0

7

1.7%

Suspected Person

5

1

0

0

5

1

6

1.5%

Hawking

0

0

1

0

1

0

1

0.2%

Regulatory

Master-Servant

2

0

0

0

2

0

2

0.5%

Bum Boat

0

0

2

0

2

0

2

0.5%

75

122

160

56

235

168

403

100.0%

Source: L.M.A., CLA/031/03/004, Return of prisoners brought to Justice Room, Southwark.

  • 86 See also, Roberts (1984, 1991).
  • 87 B. Smith (2005), Eccles (2012, 31-32), Hitchcock et al. (2014, 510).
  • 88 B. Smith (2005, 159), PP (1833), Statement of Number of Persons taken into Custody by Metropolita (...)

66As in the late eighteenth century, most, 68.7%, were convicted for “disorderly” behaviour under the Vagrancy Acts. Felony offences accounted for 20.3% of summary convictions and assault for 3.7%. Historians like Rogers have identified a more interventionist attitude towards policing vagrancy in the early nineteenth century as growing numbers were arrested and imprisoned (Rogers, 1991, 146).86 When brought to court, certain categories of offenders including vagrants may have faced difficult odds as some historians have argued that they were presumed guilty rather than innocent when charged. To avoid conviction, even when the charges were based on only suspicion or reputation, they were expected to account for themselves and their actions.87 Before some magistrates, therefore, suspects were routinely convicted. At the Thames magistrate office in 1836, 78.5% of the 903 persons charged under the Police and Vagrancy Acts were convicted, and across the stipendiary offices in 1831-1832, on average 54% of vagrants taken into custody by the Metropolitan police were convicted.88

  • 89 PP (1821), Report from the Select Committee on Existing Laws Relating to Vagrants, 62.

67At Southwark, however, most accused vagrants were dismissed, 62.6% of the 401 women and 70.1% of the 663 men, a dramatic shift from the late-eighteenth century when vagrants saw the highest rates of conviction. This high dismissal rate, in the face of the increased policing and the evidentiary burdens placed on accused vagrants, indicates that the justices in Southwark rejected imposing tougher sanctions on vagrants and refrained from treating all acts of vagrancy identically. Possibly, the actions of justices at Southwark mirrored those described by G.B. Mainwaring, a Middlesex magistrate, in 1821. Though, Mainwaring explained, “the act of vagrancy is by law a punishable offence”, nevertheless the magistrate, “in the discretionary exercise of his duty” also makes a “moral distinction” between vagrancy arising from destitution and that proceeding from “imposture and intentional delinquency”; while the latter would be punished, the former was generally treated as an “object of charity”.89 Despite continued parliamentary criticism of this approach to vagrancy, the practices at Southwark suggests that this moral distinction continued to hold force at certain summary courts.

68By 1836, the summarily convicted were no longer predominantly female as male defendants made up 58.3% of summary convictions. Still, women continued to be convicted at slightly higher rates with 28.1% of female defendants convicted compared to 21.4% of males. If we compare the rate of conviction for male and female offenders who were charged with the same category of offence, as is done in Table XII, we find that women charged with assault, petty property offences and disorderly behaviour saw greater rates of conviction than their male counterparts, whereas those charged with felony, misdemeanor, as vagrants or as suspected persons saw lower conviction rates compared to men.

  • 90 PP (1833), Statement of Number of Persons taken into Custody by Metropolitan Police, 1831-1832, P (...)

69The rates at which male and female offenders were committed for trial were also close with a slightly higher percentage of male offenders — 11% or 124 men — sent to trial compared with women — 7.3% or 43. These patterns indicate that at Southwark, as in parts of continental Europe, the magistrates did not systematically discriminate against offenders on the grounds of sex, and evidence from the stipendiary offices in the 1830s suggests this approach may have been widespread across London.90

70By contrast, punishments for the summarily convicted were massively gendered. As Table XI shows, regardless of the offence alleged, male offenders were more likely than their female counterparts to be fined rather than imprisoned with the result that a majority of convicted men escaped imprisonment while a majority of convicted women were locked up. With respect to “disorderly” behaviour, the justices sentenced a majority (65.9%) of the 129 females convicted to imprisonment in Brixton house of correction while they fined the vast majority (92.3%) of the 148 males. Whereas all female offenders convicted for felony were imprisoned, a handful of men were fined instead. Of the 11 men convicted of assault, only two were imprisoned with the rest fined, but of the four women, half were were imprisoned, and half were fined. Women were generally fined the same amounts as men for the same offences, and they received similar, if not longer on average, prison sentences. These sentences prove that female criminality was treated as seriously as male criminality at Southwark Town Hall in the 1830s. Though an offender’s gender did not, it seems, play a crucial role in the justice’s decision to summarily convict, his or her gender was significant in determining the punishment. Since women were more likely than men to be given custodial sentences, the consequences of their offending were more severe.

Table XII. Rate of Conviction by Offence and Gender at Southwark Town Hall, 1836

Summarily Convicted

Total Charged

% Summarily Convicted

Male

Female

Male

Female

Male

Female

Property

5

4

23

6

21.7%

66.7%

Felony

52

30

185

140

28.1%

21.4%

Assault

11

4

185

36

5.9%

11.1%

Misdemeanour

2

0

14

10

14.3%

0.0%

Vagrancy Acts

Disorderly

148

129

611

374

24.2%

34.5%

Vagrant

7

0

38

25

18.4%

0.0%

Suspected Person

5

1

8

2

62.5%

50.0%

Hawking

1

0

2

0

50.0%

----

Regulatory

Master-Servant

2

0

10

0

20.0%

----

Bum Boat

2

0

2

0

100.0%

----

Source: L.M.A., CLA/031/03/004, Return of prisoners brought to Justice Room, Southwark.

Conclusion

  • 91 For criminalisation of assault, Wiener (1998), Wood (2004).

71In both the late-eighteenth and early-nineteenth centuries, the justices at Southwark’s summary court acted primarily as arbitrators who resolved the majority of business before them without formal action. The fact that most of those brought before the court in the 1770s-1780s were discharged is perhaps not surprising, as it confirms the findings of earlier work on summary justice. It is, however, significant that the same was true in 1836 as it has important implications for our understanding of summary justices and its evolution in the nineteenth century. The evidence from Southwark suggests that, even as proceedings became more formal and procedure was standardised, the justices nevertheless retained considerable discretion, as did prosecutors. Certainly, the treatment of certain offences changed — accused vagrants, for example, were more likely to be discharged in 1836 than in the earlier period, and a greater percentage of those charged with assault in 1836 were sent to trial than before.91 Overall, however, the nature of justice dispensed did not alter significantly over the period. The will of the victim continued to shape most outcomes, opportunities for informal justice persisted, and formal action was seldom taken. David Lemmings has argued that the shift towards summary justice in the eighteenth century led to a “marked deterioration in popular engagement with authority”, but in Southwark, summary justice relied on the initiative and active participation of private citizens (Lemmings, 2011, 173). The participatory, personalised nature of justice at Southwark and the growing number who brought their disputes there in the nineteenth century suggests greater engagement with the law, not less.

  • 92 Term from King (2000, 84).
  • 93 PP (1833), Statement of Number of Persons taken into Custody by Metropolitan Police, 1831-1832, P (...)

72When the treatment of allegations at Southwark is compared with the practices at the stipendiary offices in the 1830s, important distinctions appear. Principally, the “mediation-based ethos” of summary proceedings seems to have predominated longer outside the stipendiary system of professional magistrates.92 As the justices at Southwark continued to discharge the majority of allegations, magistrates at the stipendiary offices were moving away from policies that favoured diversion — informal sanctions not including indictment, fines or imprisonment — towards polices that prioritised public discipline. Between 1831 and 1837, on average only 50% of defendants taken into custody by the metropolitan police and examined by the stipendiary magistrates were dismissed while, significantly, 43% were summarily convicted.93 As this comparison highlights, the shift away from mediation and informal resolution happened at different paces and times at different summary courts. To establish these details and understand the specific pressures that caused the shift, closer investigation of the proceedings each court will be needed.

73Finally, though historians have found that English higher courts, the Old Bailey and the assizes, generally treated female defendants with greater leniency than males, most women were tried not at the higher courts but at lower levels of justice, especially in summary proceedings. At this level in Southwark, women by and large were treated the same as men across the period under study. Where there were differences in treatment, like in Kettilby’s treatment of vagrancy or the justices’ application of summary punishments in 1836, these tended to favour men and disadvantage women. The findings from this study suggest the summary courts may have taken a more gender-neutral approach to petty criminality, a view that mirrors the recent findings of Pluskota on nineteenth-century continental Europe (2018). Yet, research on gender and violence in the late-nineteenth and early-twentieth century has found magistrates at English petty sessions treating female violence dismissively (Godfrey et al., 2005). Clearly, more detailed research needs to be done on summary proceedings to assess the impact of gender on sentencing and how this may have varied across courts and over time.

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Notes

1 London Metropolitan Archives, London (thereafter L.M.A.), CLA/031/03/001, Record of Business done before the Southwark Justice, 24 August 1780.

2 https://www.historyofparliamentonline.org/volume/1754-1790/member/fullarton-william-1754-1808#biography, Ibid.

3 King (2004, 145-146), Gray (2013b, 11-12).

4 For outside London see, Philips (1975), Oberwittler (1990), Hay (1998, 2004), King (2000, 2004, 2006), Morgan, Rushton (2003), Landau (1984, 2002, 2005), Godfrey et al. (2005), Abraham (2011), Darby (2015), August (2015). On London see Shoemaker (1991), Beattie (2001), Gray (2006), Paley (1983, 1991), B. Smith (1996), G. Smith (1999, 2013), Davis (1984, 1985).

5 L.M.A., CLA/031/03/001, Record of Business done before the Southwark Justice, L.M.A., CLA/031/03/004, Return of prisoners brought to Justice Room, 1 January to 31 December 1836.

6 Petty sessions were rare outside of London before the mid-nineteenth century, and many parishes saw their sessions collapse periodically into disuse. Paley (1991, xv), King (2000, 83-85), Bentley (1998, 2-4).

7 Beattie (2001, 91-94, 108-110, 144), G. Smith (2013, xiv). Each alderman was expected to serve for one day at a time — a system quickly adapted as aldermen filled in for one another or chose to sit for days in a row — and was assisted by a clerk and attorney from the mayor’s court.

8 Beattie (2001, 110), G. Smith (2013, xv). Lord mayor heard cases coming from east of King Street while the aldermen heard those from the west.

9 On these attempts see, Beattie (2001, 2007, 2012), Paley (1983).

10 Ancestry, Select Births and Christenings, 1538-1975, FLH film number 919631, <https://www.ancestry.co.uk/sharing/17740664?h=13f3ee&utm_campaign=bandido-webparts&utm_source=post-share-modal&utm_medium=copy-url> examined for reference to James Kettilby, last accessed 5 August 2019, The National Archives, London (thereafter T.N.A.), IR 1/10 f.42, Board of Stamps: Apprenticeship Books, City (Town) Registers, May 1724-August 1725.

11 T.N.A., IR 1/12 f. 30, Board of Stamps: Apprenticeship Books, City (Town) Registers, 16 March 1730- 2 November 1731, Anon (1757, 231).

12 London Evening Post (21 December 1758), London Chronicle (22 December 1764).

13 He was made Renter Warden in 1771, Upper Warden in 1772, and Master of the Guild in 1773 — placing him at the heart of the guild’s Ruling body. Details of Kettilby’s position provided by Janet Payne, Archive Officer at the Apothecaries’ Hall.

14 On competition for the post, Johnson (1969, 231-232).

15 There is one gap, 22 March to 24 May 1780, in the notebook. After his notebook ends, we know Kettilby continued to act as Southwark justice (perhaps with the help of another man) until his death as he continued to commit offenders to the house of correction and for trial. Surrey Historical Centre, Woking (thereafter S.H.C.), QS2/6/1785/Eph/2, Southwark House of Correction prison calendars, S.H.C., QS2/6/1785/Eph/6, Southwark House of Correction prison calendars for the adjournment.

16 Beattie (2001, 104), King (2004, 137), Gray (2013a, 217).

17 L.M.A., CLA/031/03/001, Record of Business done before the Southwark Justice, 13 April 1778, 23 May 1776.

18 Parliamentary Papers (hereafter PP) (1833), Statement of Number of Persons taken into Custody by Metropolitan Police, 1831-3182, Inwood (1990, 135-136).

19 L.M.A., CLA/031/03/001, Record of Business done before the Southwark Justice, 26, 31 October 1780.

20 L.M.A., CLA/031/03/001, Record of Business done before the Southwark Justice, 16 March 1779, 12 August 1776.

21 See also, King (2006, 41-43).

22 King (2006, 165, fn.1), Walker (2003, 4-5), van der Heijden and Pluskota (2018, 661-662), Godfrey (2014, 159).

23 For England, important work includes Beattie (1975), Zedner (1991), Kermode and Walker (1994), Walker (2003), Hurl-Eamon (2005), King (2006), Palk (2006), D’Cruze and Jackson (2009), Emsley (3rd ed., 2005). For Holland, van der Heijden (2013, 2016), van der Heijden and Koningsberger (2013), van der Heijden and Pluskota (2015, 2018), Pluskota (2018), van der Heijden and Schmidt (2016). For Italy, Dean (2007), Muurling and Pluskota (2017), van der Heijden and Muurling (2018). For Germany, Kamp (2016), Rublack (1999). For France, Ferguson (2010), Pluskota (2016).

24 King (2006, 196), van der Heijden and Koningsberger (2013, 102), G. Smith (2014, 147-150).

25 One of the earliest recognitions that female crime rate in England, 1660-1800, was not stable was Beattie (1975).

26 Their evidence for England challenged most convincingly by King (2006, 150, 196-220).

27 Females made up 30.12% of defendants between 1775-81. Old Bailey Proceedings Online (hereafter O.B.P.) (www.oldbaileyonline.org, version 8.0, July 2019), Tabulating year against defendant gender, counting by defendant, <https://www.oldbaileyonline.org/stats.jsp?y=year&x=defendantNamesGender&countBy=_defendantNames&render=&_offences_offenceCategory_offenceSubcategory=&_verdicts_verdictCategory_verdictSubcategory=&_punishments_punishmentCategory_punishmentSubcategory=&_defendantNames_defendantGender=&defendantAgeFrom=&defendantAgeTo=&_victimNames_victimGender=&victimAgeFrom=&victimAgeTo=&_divs_fulltext=&kwparse=and&fromMonth=&fromYear=1775&toMonth=&toYear=1781>.

28 Table I (discharge + discharge with relief), Gray (2006, 45).

29 Burn (1772, 363).

30 Search for evidence expanded even further under John Fielding who pioneered routine re-examinations. Beattie (2001, 83-84, 89, 95-96).

31 On this change see, Beattie (2001, 105-106) and (2007, 66-67), King (2000, 87-94) and (2006, 8).

32 L.M.A., CLA/031/03/001, Record of Business done before the Southwark Justice, 4 July 1778, 4 July 1780.

33 L.M.A., CLA/031/03/001, Record of Business done before the Southwark Justice, 15 June 1776.

34 G. Smith (2014, 69-70).

35 L.M.A., CLA/031/03/001, Record of Business done before the Southwark Justice, 8 August 1780.

36 L.M.A., CLA/031/03/001, Record of Business done before the Southwark Justice, E.g., 25 July, 27, 29 September 1780.

37 L.M.A., CLA/031/03/001, Record of Business done before the Southwark Justice, 1 and 5 December 1780.

38 L.M.A., CLA/031/03/001, Record of Business done before the Southwark Justice, 30 September 1778.

39 L.M.A., CLA/031/03/001, Record of Business done before the Southwark Justice, 25 May 1776.

40 L.M.A., CLA/031/03/001, Record of Business done before the Southwark Justice, 8 and 24 November 1777. O.B.P., December 1777, Thomas Leggett and Richard Scoles (t17771203-71).

41 Hay (1983, 167), King (2001, 17). Hay found more than 80% of all criminal cases prosecuted by private individuals in the eighteenth century.

42 For an overview of socio-legal historical research into “the uses of justice” and a sample of scholars who take this approach see, van der Heijden and Vermeesch (2019) and Roodenburg and Spierenburg (2004).

43 L.M.A., CLA/031/03/001, Record of Business done before the Southwark Justice, 4 August 1780.

44 L.M.A., CLA/031/03/001, Record of Business done before the Southwark Justice, 22 April 1776.

45 L.M.A., CLA/031/03/001, Record of Business done before the Southwark Justice, 29 July 1778.

46 L.M.A., CLA/031/03/001, Record of Business done before the Southwark Justice 8 July 1778, 2 February 1779.

47 Similarly, King has argued that prosecutors may have seen imprisonment on remand waiting for trial as a sufficient punishment, which is why a portion failed to show up to prosecute at the quarter sessions. King (2000, 44-64), Gray (2007, 8-9)

48 For the courts’ use of impressment as an alternative to trial see: Rogers (1994, 102-113), Conway (2006), King (2000, 91-92) and (2002, 97-116).

49 L.M.A., CLA/031/03/001, Record of Business done before the Southwark Justice, 13 October 1778. Burn was sentenced to 14 days hard labour in Bridewell.

50 L.M.A., CLA/031/03/001, Record of Business done before the Southwark Justice, 27 September 1779.

51 L.M.A., CLA/031/03/001, Record of Business done before the Southwark Justice, 31 January and 1 February 1781.

52 King (2006, 165-226, especially 165-186) and (2000, 196-202), Pluskota (2018, 17-19). Pluskota also details the exceptions to this general pattern.

53 Beattie (1986, 437), King (2006, 180), van der Heijden and Pluskota (2015), Pluskota (2018).

54 Gray also found evidence of harsher treatment towards women in nineteenth-century Bedfordshire. Gray (2009, 13).

55 Men and women stole similar things too. Both were accused of stealing clothes (including ribbon and cloth), food, household goods, watches, money and manufactured goods (like fur for hat-making). On the other hand, only males were charged with highway robbery, theft of iron, alcohol and tools, while only females were charged with privately stealing money from the person and stealing from the workhouse.

56 Most felonies tried at the Old Bailey were property offences in this period, so it is likely that these felonies were also property crimes. King (1999, 55).

57 39 Eliz I, c.4, 13 Anne c.26, 17 Geo II c.5, 32 Geo III c.53, 3 Geo IV c.40.

58 This continued reliance may have been common across England until the later nineteenth century. Innes (1987, 86-87), Shoemaker (1991, 196-171), King (2006, 30). On expansions to Vagrancy Acts see Eccles (2012, 4-21) and Rogers (1991, 128).

59 Beattie (2001, 26-29, 97), B. Smith (1996, 108-109) and (2005), Innes (1987, 75, 88-89).

60 Gray (2006, 47-50), Darby (2015, 3, 314). Darby sampled the notebooks of 13 rural magistrates and found that they heard 461 property offences. Of these, 55% of males were convicted summarily and 42% of women.

61 Rogers (1991, 133), Hitchcock et al. (2014, 517, 519-520).

62 Field (2018, 258), King (1996, 70-71, 75-76), Henderson (1992, 43) and (1999, 18), Earle (1989).

63 Rogers (1991, 133-134), Hitchcock, Crymble, Falcini (2014, 517), Field (2018, 258).

64 Gowing (2000), Miller (2019).

65 Henderson (1999, 80-83), Carlin (1996), Karras (1989), Kelly (2000).

66 On the links between domestic service and prostitution, King (1996, 77), Henderson (1999, 14-16).

67 For the movement in the early-eighteenth century, see Shoemaker (2001, 144-166). For the later movement, see Innes (2009, ch.6).

68 For a discussion of gender and whipping, see Smith (1999, 395-414).

69 L.M.A., CLA/031/03/001, Record of Business done before the Southwark Justice, 9 January 1779, 9 July 1779, 22 January 1780, 31 October 1780, 30 November 1780, 8 January 1781, 8 February 1781. In 1779, Ingram was imprisoned in the Borough Compter overnight by a local constable or watchman alongside large numbers of women, which is why I assume she was suspected of prostitution. Ingram was arrested and imprisoned almost immediately after her release from prison in November 1780. It is clear this was a new offence, though, as she is charged with a different woman. 17 Geo II c 5.

70 L.M.A., CLA/031/03/001, Record of Business done before the Southwark Justice, 28 March 1777.

71 L.M.A., CLA/031/03/001, Record of Business done before the Southwark Justice, 11 and 13 May 1776.

72 B. Smith (1996, ch.8), Emsley (2005, 208).

73 B. Smith (1996, 442), Bentley (1998, 21).

74 The best work on nineteenth-century London public offices/police courts remains Davis (1984, 1985). See also Paley (1983), G. Smith (1999), B. Smith (1996, 2005, 2006). On paucity of research, Gray (2016, ch. 9). Outside London: Godfrey et al. (2005), Barrie, Broomhall (2014, 2 vols.), Abraham (2011).

75 This excludes £100/year in lieu of rent. The magistrate was also allowed a clerk, two marshalmen, and a housekeeper.

76 Field (2018, 245-6), PP (1828), Select Committee on the Police of the Metropolis, 145.

77 PP (1833), Statement of Number of Persons taken into Custody by Metropolitan Police, 1831-1832.

78 All offenders committed for trial at Southwark, who can be traced in higher court records, were accused of a property offence.

79 L.M.A., CLA/031/01/007, Borough Compter Charge Book, 13-14 July 1836.

80 L.M.A., CLA/031/01/007, Borough Compter Charge Book, 17-18 April, 10 August 1836.

81 L.M.A., CLA/031/01/007, Borough Compter Charge Book, 7 January 1836.

82 PP (1828), Select Committee on the Police of the Metropolis, 239.

83 Ibid., 64.

84 L.M.A., CLA/031/03/004, Return of prisoners brought to Justice Room, L.M.A., CLA/031/01/007, Borough Compter Charge Book, 11 March and 27 April 1836.

85 The newspaper does not report on how the case ended.

86 See also, Roberts (1984, 1991).

87 B. Smith (2005), Eccles (2012, 31-32), Hitchcock et al. (2014, 510).

88 B. Smith (2005, 159), PP (1833), Statement of Number of Persons taken into Custody by Metropolitan Police, 1831-1832. This pattern continued later in the nineteenth century, see PP (1851), Return of Number of Vagrants taken into Custody by Metropolitan Police, 1840-1850.

89 PP (1821), Report from the Select Committee on Existing Laws Relating to Vagrants, 62.

90 PP (1833), Statement of Number of Persons taken into Custody by Metropolitan Police, 1831-1832, PP (1839), Tables of the Revenue, Population and Commerce, 1837, 157.

91 For criminalisation of assault, Wiener (1998), Wood (2004).

92 Term from King (2000, 84).

93 PP (1833), Statement of Number of Persons taken into Custody by Metropolitan Police, 1831-1832, PP (1839), Tables of the Revenue, Population and Commerce, 1837, 157.

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