Popular perceptions of rape as a capital crime in eighteenth-century England: The press and the trial of Francis Charteris in the Old Bailey, February 1730

Law and History Review

Volumn 22, Issue 1, 2004, Pages 27-69

  Simpson, Antony E ^a  

^a JOHN JAY COLLEGE OF CRIMINAL JUSTICE   (United States)

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EID: 61149682015     PISSN: 07382480     EISSN: None     Source Type: Journal    
DOI: 10.2307/4141665     Document Type: Article

References (219)

1. T. B. Howell, comp., A Complete Collection of State Trials and Proceedings for High Treason, and Other Crimes and Misdemeanours (London: Longman, 1816-28)
2. J. G. Muddiman's comments on this source as a "Whig compilation" constitute the most trenchant of the many criticisms of it. The Bloody Assizes (Edinburgh: William Hodge, 1929), 152
3. Lillian Faderman, Scotch Verdict: Dame Gordon vs. Pirie and Woods (New York: Morrow, 1983)
4. On the lack of sexual connotation attached to female cross-dressers, see Lynne Friedli, "'Passing Women' - A Study of Gender Boundaries in the Eighteenth Century," in Sexual Underworlds of the Enlightenment, ed. G. S. Rousseau and Roy Porter (Manchester: Manchester University Press, 1987), 234-60
5. On traditional tolerance for lesbianism, see A. D. Harvey, Sex in Georgian England: Attitudes and Prejudices from the 1720s to the 1820s (New York: St. Martin's Press, 1994), 111-15
6. John H. Langbein, Prosecuting Crime in the Renaissance: England, Germany, France (Cambridge: Harvard University Press, 1974)
7. "Shaping the Eighteenth-Century Criminal Trial: A View from the Ryder Sources," University of Chicago Law Review 13 (1983): 1-136
8. Peter Linebaugh, "The Ordinary of Newgate and his Account," in Crime in England 1550-1800, ed. J. S. Cockburn (London: Methuen, 1977), 246-69
9. In what is perhaps the most important recent development in historical legal bibliography, the Old Bailey Proceedings have just been published in electronic form. They are readily accessible at no cost through the Web: http://www.oldbaileyonline.org. This database includes the full text of the original reports, more printer-friendly transcripts of them, and some links to related primary sources. It can be searched in a variety of interesting ways. Other links include an excellent bibliography of secondary sources. When complete, the database will cover the period 1674 to 1834. At the time of writing, it goes from 1714 through 1799
10. James Mountague, The Old Bailey Chronicle; Select Trials (1742)
11. The Proceedings at the Sessions of the Peace. Also helpful was The Tyburn Chronicle. (Full citations to these and other primary sources documenting the Charteris trial are given in the Appendix.)
12. His case has commanded some attention in recent times. However, only two modern treatments of it are of interest. Arthur Vincent is valuable as a source on Charteris' life, although his comments on the trial are not. "Colonel Francis Charteris (1675-1732)," in Lives of Twelve Bad Men: Original Studies of Eminent Scoundrels by Various Hands, ed. Thomas Seccombe (New York: Putnam's, 1894), 200-18 and 357-58
13. Horace Walpole, who had met Charteris, made this identification in 1780, although Hogarth did not apparently take kindly to this ascription. See Horace Walpole's Correspondence, ed. W. S. Lewis (New Haven: Yale University Press, 1937-83), 15: 142
14. The famous Hogarth plate shows the bawd in the foreground enticing the fresh country girl. The rake leers approvingly in the background. (Good reproductions of this and other Hogarth series are to be found on the Web at http://www.haleysteele.com/hogarth/toc.html.) For observations on the career of Mother Needham and the sources documenting it, see Chancellor, Col. Charteris, 23-25 and 82-83
15. See Chancellor, Col. Charteris, 25-26
16. Jonathan Swift, The Correspondence of Jonathan Swift, ed. Harold Williams, 5 vols. (Oxford: The Clarendon Press, 1965), 3: 85
17. John Percival, Earl of Egremont, Diary of Viscount Percival . . . Vol. I. 1730-1733 (London: H.M.S.O., 1920), 75, 76, and 235
18. Philip D. Stanhope, Earl of Chesterfield, Letters Written by the Late . . . Earl of Chesterfield to His Son . . ., 3rd ed., 2 vols. (London: J. Dodsley, 1774), 2: 315
19. The Life of Don Francisco (see Appendix for full reference)
20. The British Journal, 25 April 1730
21. John H. Burton, Lives of Simon Lovat and Duncan Forbes, of Culloden . . . (London: Chapman and Hall, 1847), 309-10
22. Henry Mackenzie, The Anecdotes and Egotisms of Henry Mackenzie, 1745-1831, ed. Harold W. Thompson (London: Humphrey Milford, 1927), 103
23. See Bertrand A. Goldgar, Walpole and the Wits: The Relation of Politics to Literature, 1722-1742 (Lincoln: University of Nebraska Press, 1976), 107-8
24. Swift, The Correspondence, 5: 81
25. Such was reported by The London Evening-Post, 27-29 November 1729
26. The Country Journal; Or, The Craftsman, 13 December 1729
27. Fog's Weekly Journal, 13 December 1729
28. The British Journal: Or, The Censor, 15 November and 27 December 1729
29. See The Daily Post, 19 December 1729
30. "Prisoner. Did you not tell some of the Family, that since I had so much Silver, I should have my Instrument tipp'd, for it would not please a Woman? Prosecutor. No." Select Trials(1742), 3: 200
31. From John Percival's diary for 4 March 1730: "I heard the King intends to pardon Colonel Chartres, it being found out that the woman he would have ravished was a common strumpet, at least it being so related at court. . . . All the world agree he deserved to be hanged long ago, but they differ whether on this occasion." Percival, Diary, 76. See also previous note
32. The earl may not have been an entirely willing party in this. Wemyss' marriage to Miss Charteris, against the wishes of her father, was unhappy and short-lived. Sir William Fraser, Memorials of the Family of Wemyss, 3 vols. (Edinburgh, 1888), 1: 347-54
33. The British Journal, 29 August and 5 September 1730
34. George Menary, The Life and Letters of Duncan Forbes of Culloden. . . . (London: Alexander Maclehose, 1936), 347
35. The writer, Dr. Mead, was a most influential figure at court. Apart from being Royal Physician, he was frequently consulted on various matters by both Walpole and George II. On at least one other occasion he had interceded successfully in the attempt of a privileged miscreant to obtain relief. Dictionary of National Biography, hereafter DNB, 66 vols. (London: Smith, Elder, 1885-1901), 13: 181-86
36. Gentleman's Magazine, hereafter GM, 2 (March 1732): 378 and 2 (April 1732): 718
37. DNB, 4: 135-6
38. Menary, The Life and Letters, 346
39. Forbes was an eminent Scottish lawyer and a personal friend of both Charteris and Sir Robert Walpole, who was also remembered in the will. Burton, Lives, 305 and 326
40. In losing any of his property in this way, Charteris was unusual as a felon. The legal rule regarding the confiscation of the property of a convicted felon was rarely applied in this period. César de Saussure, A Foreign View of England in the Reigns of George I and George II . . . , trans. Mme. Van Muyden (New York: E.P. Dutton, 1902), 119-20
41. By the early eighteenth century, juries had begun to adopt the standard practice of reporting convicted felons to possess "no goods." J. M. Beattie, Crime and the Courts in England, 1660-1800 (Princeton: Princeton University Press, 1986), 337-38. See also note 22
42. "Property, Authority and the Criminal Law," in Albion's Fatal Tree: Crime and Society in Eighteenth-Century England, ed. Douglas Hay, Peter Linebaugh, and E. P. Thompson (New York: Pantheon, 1975), 17-63
43. Quoted in Hints to the Public and the Legislature, on the Prevalence of Vice, and on the Dangerous Effects of Seduction (London: E. Wilson, 1811), 102
44. So thought Horace Walpole. See Memoires of the Last Ten Years of the Reign of George the Second, 2 vols. (London: John Murray, 1822), 2: 460
45. W. J. Sheehan, "Finding Solace in Eighteenth-Century Newgate," in Cockburn, Crime in England, 229-45. See also note 22
46. See Ian Watt, The Rise of the Novel: Studies in Defoe, Richardson and Fielding (Berkeley: University of California Press, 1957), 220
47. Terry Eagleton's analysis seems to support this perception even though, for Eagleton, Clarissa is a subversive novel expressly intended by its author to vaunt the superiority of middle-class over aristocratic values. The Rape of Clarissa: Writing, Sexuality, and the Class Struggle in Samuel Richardson (Minneapolis: University of Minnesota Press, 1982), 23
48. A woman representing herself as Charteris' daughter wrote to Swift in 1733 commenting upon her alleged father's historical interest in "dirty wenches" and stating the opinion: "For if a man must do wrong, he should aim a little higher than the enjoyment of a kitchen-maid, that he finds obstinately virtuous." Swift, The Correspondence, 4: 173
49. See Edward Ward, The London-Spy Compleat . . ., 3rd ed., 2 vols. (London: J. How, 1706), 1: 73. It will be remembered that Ann Bond was hired through an intermediary
50. Satan's Harvest Home; Or the Present State of Whorecraft, Adultery, Fornication, Procuring, Pimping, Sodomy, and the Game at Flatts, and Other Satanic Works Daily Propagated in this Good Protestant Kingdom (London, 1749), 3
51. Scotch Gallantry Display 'd, 21
52. English Jacobite troops occupied his home in northern England briefly in the 1715 Rebellion, but did no damage to it. One Jacobite officer in this campaign noted that, had it been Scottish Jacobite soldiers, his house would have been burnt - not because of his continued loyalty to King George, but "on account of his own personal Character, which is known not to have been very acceptable to those who are acquainted with him." Robert Patten, The History of the Rebellion in the Year 1715. With Original Papers, and the Characters of the Principal Noblemen and Gentlemen Concerned in It, 3rd ed. (London: J. Roberts, 1745), 74
53. In a letter to Pope in this year, Swift referred to the male population of Dublin in observing: "here we have . . . a race of young wicked Dunces and Atheists, or old Villains and Monsters, whereof four-fifths are more wicked and stupid than Chartres." Alexander Pope, The Correspondence of Alexander Pope, ed. George Sherburn, 5 vols. (Oxford: The Clarendon Press, 1956), 4: 12-13
54. See also Swift, The Correspondence, 4: 477
55. The activities of violent gangs of aristocratic thugs in this period are well documented. For a description of "The Mohocks," one of the nastier of these, see The Spectator, 12 March 1712
56. For a discussion of this case, see Wallace Shugg, "The Baron and the Milliner: Lord Baltimore's Rape Trial as Mirror of Class Tensions in Mid-Georgian London," Maryland Historical Magazine 83 (1988): 310-30
57. Charteris' many detractors have denigrated his service in this campaign. The evidence does, however, suggest that he served his king honorably, and with some small distinction. Patten, The History of the Rebellion, 71-72
58. Paul de Rapin-Thoyras, The History of England, trans. N. Tindal (London: Knapton, 1726-47), 26: 164-65. This must have been taken into account by the Privy Council in considering his application for reprieve
59. Stanhope, Letters, 2: 315
60. Bolingbroke's comment that Charteris was "envied by many," presumably for his wealth, underscores the subversive nature of venality which is both public and successful. Henry Saint-John, Viscount Bolingbroke, The Works of Lord Bolingbroke. With a Life. . ., 4 vol. (Philadelphia: Carey and Hart, 1841), 4: 384
61. In this year, Erasmus Lewis referred to him as one of Walpole's "runners," employed to hound the minister's enemies in various ways. In 1730, Swift called him "that continuall favorite of Ministers." Swift, Correspondence, 2: 116 and 3: 405
62. For discussion of Pope's concerns in this regard, see Donald B. Clark, Alexander Pope (New York: Twayne, 1967)
63. Maynard Mack, The Garden and the City; Retirement and Politics in the Later Poetry of Pope, 1731-1743 (Toronto: University of Toronto Press, 1969)
64. On the rise of the "new men" of finance and politics, see Peter G. M. Dickson, The Financial Revolution in England: A Study in the Development of Public Credit, 1688-1756 (London: Macmillan, 1967)
65. "On Colonel Francisco"; Mack, The Garden and the City, 183
66. Quoted by Mack, The Garden and the City, 184n. In fact, Walpole was rewarded to some small extent by Charteris at the time of the pardon. He was certainly a beneficiary in Charteris' will. See note 24
67. Goldgar, Walpole and the Wits, 107-8
68. Here I am talking of public perceptions of the mechanics of Charteris' reprieve. The facts of the matter may be somewhat kinder to Walpole. The Earl of Wemyss, Charteris' son-in-law and probably unwilling champion, was the head of a powerful Scottish family which was not then inclined to the house of Hanover. Fraser, Memorials, 1: 350
69. Given the politics of the times, and the location of Charteris' prosecution exactly midway between the Rebellions of 1715 and 1745, it is possible that Walpole saw a good opportunity for an important alliance. Walpole was obsessed with Jacobitism and a hatred for Roman Catholics and those who allied with them. He was, however, always ready to intrigue with these traditional enemies. J. H. Plumb, Sir Robert Walpole, 2 vols. (Boston: Houghton Mifflin 1961), 2: 15
70. Plumb, Sir Robert Walpole, 2: 200-32
71. Antony E. Simpson, "Masculinity and Control: The Prosecution of Sex Offenses in Eighteenth-Century London" (Ph.D. dissertation, New York University, 1984)
72. "The 'Blackmail Myth' and the Prosecution of Rape and Its Attempt in 18th Century London: The Creation of a Legal Tradition," Journal of Criminal Law and Criminology 77 (1986):101-50
73. "Vulnerability and the Age of Female Consent: Legal Innovation and Its Effect on Prosecutions for Rape in Eighteenth-Century London," in Rousseau and Porter, Sexual Underworlds, 181-205. These accounts provide further documentation of the discussion which follows
74. Published trial reports and other forms of criminal biography were very widely read at this time. Their readership ranged across the social spectrum, but their biggest audience was the "middling" classes. Lincoln B. Faller, Turned to Account: The Forms and Functions of Criminal Biography in Late Seventeenth and Early Eighteenth-Century England (Cambridge: Cambridge University Press, 1987), 203-8
75. Giacomo C. Casanova, Chevalier de Seingalt, History of My Life, trans. Willard R. Trask, 12 vols. (New York: Harcourt Brace Jovanovich, 1966-71; orig. 1826-38), 9: 295
76. Doris Graber, for example, demonstrates that the news media in the modern world distorts the actual patterns of crime in their reporting, and that the population's conceptions of these are to a large extent molded by media sources (Crime News and the Public [New York: Praeger, 1980])
77. Peter King's analysis is one of several suggesting that the eighteenthcentury English press came to assume importance "in shaping public perceptions of, and reactions to, particular forms of crime or social unrest" ("Newspaper Reporting, Prosecution Practice and Perceptions of Urban Crime: The Colchester Crime Wave of 1765," Continuity and Change 2 [1987]): 423
78. By definition, "popular trials" command a great deal of media attention. However, they must also "offer a 'performance' of the laws, (and) enact social knowledge in several senses: The trial is a recognized social practice; it is constituted by social agreements . . . it presents and authorizes particular beliefs (and) finally, the popular trial observes specific rhetorical constraints, including (but not limited to) the adversarial format, reliance upon official symbols, the formal closure of a decision, and emphasis upon characterization" (Robert Hariman, "Introduction," in Popular Trials: Rhetoric, Mass Media, and the Law, ed. Robert Hariman [Tuscaloosa: University of Alabama Press, 1990], 12)
79. The temporal and other limitations of the Old Bailey Proceedings are discussed in the various works of John Langbein. Primary and secondary sources documenting availability and use of court records from the sixteenth, seventeenth, and eighteenth centuries are discussed in Louis Knafla's excellent bibliography, "Crime and Justice: A Critical Bibliography," in Cockbum, Crime in England, 270-98 and 352-53
80. For discussion of other sources of publications documenting crime and the criminal courts in this period, see Gerald Howson, Thief-Taker General: The Rise and Fall of Jonathan Wild (New York: St. Martin's Press, 1970), 317-27
81. Linebaugh, "The Ordinary."
82. No financial assistance to prosecutors was allowed for in law until 1752 - and precious little given even then. Beattie, Crime and the Courts, 41-48
83. Crime and the Courts, 41-48
84. For discussion of the justice of the peace as mediator, see Peter King, Crime, Justice, and Discretion in England, 1740-1820 (Oxford: Oxford University Press, 2000), especially 89-93
85. Ruth Paley, ed., Justice in Eighteenth-Century Hackney: The Justicing Notebook of Henry Norris and the Hackney Petty Sessions Book (London: London Record Office, 1991), xxxi-ii
86. Robert B. Shoemaker, Prosecution and Punishment: Petty Crime and the Law in London and Rural Middlesex, c. 1660-1725 (Cambridge: Cambridge University Press, 1991), 81-94 and 101-16
87. After convictions for indictable "Assaults, Woundings, and false Imprisonments . . . it is not unusual to recommend to the offender, before judgement, to make pecuniary satisfaction to die party injured; who thereupon releases his right to civil action, and the punishment by the court is moderated accordingly" (Sir William Eden, Principles of Penal Law, 2nd ed. [London: White and Cadell, 1771], 257-58)
88. For examples, see Beattie, Crime and the Courts, 128-29
89. Roy Porter, "Rape - Does It Have Historical Meaning?" in Rape, ed. SylvanaTomaselli and Roy Porter (Oxford: Blackwell, 1986), 217
90. Shoemaker, Prosecution and Punishment, 89
91. Randolph Trumbach, Sex and the Gender Revolution: Heterosexuality and the Third Gender in Enlightenment London (Chicago: University of Chicago Press, 1998), 29
92. The Life of Don Francisco, 47
93. A Swiss visitor to London in the 1720s noted the prevalence of court cases based on perjured testimony, and attributed this to the leniency of the law toward this kind of crime. De Saussure, A Foreign View of England, 338-39
94. A French visitor made similar observations fifty years later. Pierre J. de Grosley, A Tour to London: Or, New Observations on England and Its Inhabitants, trans. Thomas Nugent, 3 vols. (Dublin: J. Exshaw, 1774), 3: 34
95. See generally Douglas Hay, "Prosecution and Power: Malicious Prosecution in the English Courts, 1750-1850," in Policing and Prosecution in Britain 1750, ed. Douglas Hay and Francis Snyder (Oxford: The Clarendon Press, 1989), 343-95, especially 377-78
96. Julie Gammon remarks on the prevalence of accusations of malicious prosecution even in rape cases where the victims were children ("A Denial of Innocence': Female Juvenile Victims of Rape and the English Legal System in the Eighteenth Century," in Childhood in Question: Children, Parents and the State, ed. Anthony Fletcher and Stephen Hussey [Manchester: Manchester University Press, 1999], 75-76)
97. Laurie Edelstein, "An Accusation Easily Made? Rape and Malicious Prosecution in Eighteenth-Century England," American Journal of Legal History 42 (1998): 378-79
98. Clive Emsley, Crime and Society in England, 1750-1900, 2nd ed. (London: Longmans, 1996), 44
99. For a discussion placing sexual assault within the framework of the violent nature of working-class courtship, see Trumbach, Sex and the Gender Revolution, 301-5
100. Susan Staves, "British Seduced Maidens," Eighteenth Century Studies 14 (1980/ 81): 109-34
101. Peter Wagner, "The Pornographer in the Courtroom: Trial Reports About Cases of Sexual Crimes and Delinquencies as a Genre of Eighteenth-Century Erotica," in Sexuality in Eighteenth-Century Britain ed. Paul-Gabriel Boucé (Manchester: Manchester University Press, 1982), 120-40
102. Staves, "British Seduced Maidens," 130
103. Laura Gowing, "Language, Power, and the Law: Women's Slander Litigation in Early Modem England," in Women, Crime, and the Courts in Early Modern England, ed. Jenny Kermode and Garthine Walker (Chapel Hill: University of North Carolina Press, 1995), 26-47
104. Modern surveys indicate that a large proportion of rape victims are attacked by men known to them. One of the more extensive studies of this kind suggests this circumstance to be by far the commonest scenario for rape. Diana E. H. Russell, Rape in Marriage (New York: Collier, 1982), 64-68
105. This scenario is supported by the findings of other studies. Anna K. Clark, Women's Silence, Men's Violence: Sexual Assault in England, 1770-1845 (London: Pluto Press, 1987), 104-9
106. Harvey, Sex in Georgian England, 81-84
107. Tim Hitchcock, English Sexualities 1700-1800 (New York: St. Martin's Press, 1997), 108
108. Sara Mendelson and Patricia Crawford, Women in Early Modern England, 1550-1720 (Oxford: Oxford University Press, 1998), 106-7
109. Trumbach, on the basis of an examination of hospital records, believes that domestic servants were at an even higher risk from members of their households than has been supposed. Sex and the Gender Revolution, 301-22
110. Beattie notes that of twelve rape prosecutions documented in the printed records of the Surrey courts, five involved child victims. Crime and the Courts, 127
111. This great tendency of rapists to victimize children has been attributed, not to pedophilia, but to the prevalence of a folk belief that sex with an innocent provided a cure for venereal disease. Garnmon, "'A Denial of Innocence,'" 78-79
112. Simpson, "Vulnerability."
113. Sir William Blackstone considered one of the basic rights of an individual to be "The security of his reputation or good name from the arts of detractions or slander." Commentaries on the Laws of England, 4 vols. (Oxford: The Clarendon Press, 1765-69), 1: 134. He further comments upon the increasing severity with which unwarranted attacks on character had come to be regarded in law (3: 124)
114. De Saussure, writing in the 1720s, observed: "I wish you to understand that a prisoner's reputation is of great value. If several persons take the oath and say that he has always been an honest man, his case will be considered in quite a different light to what it would have been had he been suspected on other occasions of villainy" (A Foreign View of England, 121)
115. See also Langbein, "Shaping the Eighteenth-Century Criminal Trial."
116. John H. Langbein, "The Criminal Trial Before the Lawyers," University of Chicago Law Review 45 (1978): 305-7
117. For a lengthy review of the courts' persistent historical interest in the rape victim's character, sexual history, and motives in filing the charge, see Vivian Berger, "Man's Trial, Women's Tribulation: Rape Cases in the Courtroom," Columbia Law Review 77 (1977): 1-103
118. For an analysis of how legal interest in the victim's sexual past has survived recent legislative attempts to limit it in present-day Britain, see Aileen McColgan, "Common Law and the Relevance of Sexual History Evidence," Oxford Journal of Legal Studies 16 (1996): 275-307
119. See Simpson, "The 'Blackmail Myth.'" My conclusion that the shadow of venality, unjustified though it generally was, hung over prosecutions for rape is generally supported by Edelstein, "An Accusation." This account is, however, otherwise strongly critical of my analysis and the data on which it is based. These criticisms are in part based on a misreading of my argument. (Neither I nor anyone else claims "that women brought rape charges in criminal court solely for the purpose of 'making up' their injuries by negotiated financial settlement" ["An Accusation," 379].) I believe that these criticisms are also informed by a lack of appreciation of just how little control a victim had over the disposition of her case, once she had reported the offense to a magistrate. At that point, the victim would have little' say over whether her case was sent to a grand jury. See the following discussion
120. See The Proceedings, 7. Acceptance of money or a gift was construed as tacit agreement that the injury had been compensated for, or otherwise forgiven. Such agreement meant that a later criminal prosecution or civil suit was unsupportable. Trumbach, Sex and the Gender Revolution, 234
121. Simpson, "The 'Blackmail Myth."' For a statement of this rule, see note 63
122. Langbein, Prosecuting Crime, 7-125
123. This is supported by Paley's finding that about 80 percent of cases coming before magistrates were either adjudicated at this point or dismissed (Justice in Eighteenth-Century Hackney, xvii)
124. Most of these would, of course, have been for crimes less serious than sexual assault. Complainants who resisted this exercise of magisterial authority were likely to be penalized by being bound over in high recognizances (xxxi-xxxii). For detailed discussion of the passage of rape cases through the courts, see Simpson, "Masculinity," 204-311
125. Simpson, "Masculinity," 837
126. Fog's Weekly Journal, 28 December 1728
127. It is always hard to second-guess jury verdicts, but such absence of direct testimony was evidently a factor in the acquittals brought in R. v Rowson, OBP, 25 February 1730, 16-17
128. R. v Pearson (alias York), OBP, 6 December 1732, 23-24, no. 80
129. R. v Slade, OBP, 11 September 1734, 174, no. 6
130. It may have been a factor in those cases in which child testimony was refused, but without published comment: R. v Cherry, OBP, 16 January 1730, 23
131. R. v Gray, OBP, 11 July 1735, 128, no. 60
132. R. v Brown, OBP, 15 October 1735, 161-62, no. 35. In these six cases, the ages of the alleged victims ranged between six and eleven years
133. In a standard scenario for the time, the case involved a nine-year-old raped by an employee of her father. The crime came to light when the child was found to have contracted venereal disease. R. v Cannon, OBP, 12 September 1733, 197-98, no. 72
134. GM, 3 (September 1733): 493 and 3 (October 1733): 548
135. R. v Collier, OBP, 14 October 1730, 10-11
136. R. v Reytown, OBP, 4 December 1730, 9
137. R. v Ellis, OBP, 8 December 1731, 22-24
138. R. v C - J -, OBP, 10 July 1734, 161-65, no. 39
139. R. v Tugwell, Matthews, and Whitney, OBP, 11 September 1735, 150-52, nos. 65, 66, and 67
140. GM, 5 (September 1735): 558
141. R. v Blackwell, OBP, 24 October 1735
142. GM, 5 (October 1735): 618 and 5 (November 1735): 680
143. R. v Gregory, OBP, 5 February 1735:106 and 5 (May 1735): 274
144. At his execution, Gregory "feigned a Laugh even at the last Moment." GM, 5 (June 1735): 330
145. For a detailed history of the careers of Gregory and Turpin, see Derek Barlow, Dick Turpin and the Gregory Gang (London: Phillimore, 1973). Accounts of the rape and Gregory's trial for it are included in pages 85-92 and 199-209 of this source
146. One contemporary opinion tells us that convicted burglars and highway robbers were almost always "hanged without mercy" at this time. De Saussure, A Foreign View of England, 128 and 130-31
147. However, for capital offenders as a whole, prospects of reprieve were much brighter. Between 1701 and 1725, only 156 of the 471 people (33 percent) capitally convicted in the Old Bailey were executed. Forty-two percent of qualified candidates were executed between 1726 and 1750. In the second half of the century, the number of executions resulting from convictions in this court rose five-fold, although executions actually fell as a proportion of those capitally convicted. V. A. C. Gatrell, The Hanging Tree: Execution and the English People, 1770-1868 (Oxford: Oxford University Press, 1994), 7 and 616
148. See the discussion in Parliamentary Debates, 3rd series, 57 (1841): 47-58
149. See Simpson, "Masculinity," 214-19
150. When the victim was a child, a change in the charge was not necessarily thought suspicious. For example, R. v Nugent, OBP, 12 September 1798
151. The Times, 16 August, 19 September, and 29 November 1798
152. Nugent was convicted and hanged. A very celebrated case involving a schoolmaster who had abused three of his pupils was initially charged as attempted rape but was upgraded by the magistrate. The culprit was convicted and hanged. R. v Russen, OBP, 15 October 1777
153. The Gazetteer, 13 and 20 October 1777
154. Morning Post, 9, 11, and 20 December 1777. However, Ann Bond was an adult and the upgrading of her charge would normally have been regarded in a more critical light
155. He advised going to the Court of Quarter Sessions, which was not empowered to hear capital felonies, because: "it was near, and he thought that would be the best way" (Mountague, The Old Bailey Chronicle, 2: 98)
156. Modern research suggests that, in the middle of the century at least, such decisions were generally made on a rational basis. King, Crime, Justice, and Discretion, 296-333
157. This finding tells us little about how decisions based on reason could be circumvented. One well-documented case of a gentleman prosecuted for rape some years before Charteris shows that extortion, bribery, and the appeals process could be linked. Hugh Leeson, The Case of Capt. Leeson, Etc. . . (London: J. Roberts, 1715)
158. For a broad discussion of the venality of the criminal justice system in this period, see Howson, Thief-Taker General
159. Simpson, "Masculinity," 293
160. R. v Sullivan, Caswell, and Fitzgerald, OBP, sessions ending 17 July 1762
161. R. v M - L - , heard in the Old Bailey, March 1720
162. Cited in Edelstein, "An Accusation," 372n
163. See Hay, "Prosecution and Power," especially 371-77. In explaining this phenomenon, Hay invokes Sir James Stephen's maxim that "the criminal law stands to the passion of revenge in much the same relation as marriage to the sexual appetite" (345)
164. See Langbein, "The Criminal Trial."
165. Most capital trials lasted only a few minutes. A trial lasting several hours was "a matter for comment" (Beattie, Crime and the Courts, 376). My impression, based on the detail of reporting in the OBP in this period, was that rape cases lasted much longer than most
166. Beattie notes that only "a handful" of prisoners had counsel in the 1730s and that counsel for the prosecution was even less common (Crime and the Courts, 223-28)
167. In the 1830s, 95 percent of cases heard in the Old Bailey lacked a prosecution counsel because the court refused to pay the costs. See Allyson N. May, "Reluctant Advocates: The Legal Profession and the Prisoner's Counsel Act of 1836," in Criminal Justice in the Old World and the New: Essays in Honour of J. M. Beattie, ed. Greg T. Smith, Allyson N. May, and Simon Devereaux (Toronto: University of Toronto, Centre of Criminology, 1998), 198
168. From the 1730s at least, defense counsel was allowed to examine and cross-examine witnesses and address the court on points of law. He could not present the case or otherwise address the jury (J. M. Beattie, "Scales of Justice: Defense Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries," Law and History Review 9 [1991]: 221-67)
169. Willingness of the courts to bend the rules for defendants in this way has been attributed to two factors: fear of prosecutions mounted for the purpose of obtaining rewards and the increased involvement of prosecutions presented by barristers and prepared by solicitors. John H. Langbein, "The Prosecutorial Origins of Defence Counsel in the Eighteenth Century: The Appearance of Solicitors," Cambridge Law Journal 58 (1999): 314-65
170. However, presence of defense counsel was by no means the rule. The unusual circumstance of the Charteris defense is illustrated by Beattie's comment that as late as 1800, seven out of ten defendants in the Old Bailey had no counsel. Crime and the Courts, 375-76
171. Sir William Hawkins, A Treatise of the Pleas of the Crown, 2 vols. (London: J. Walthoe, 1716-21), 2: 87
172. Hawkins, A Treatise, 2: 87
173. Simpson, "Masculinity," 235
174. For her testimony, see Select Trials (1742), 3: 198
175. Simpson cites several examples of verbal courtroom abuse of rape complainants and includes a detailed verbatim account of one witness examination, taken from R. v Curtis, OBP, sessions ending 20 February 1793 ("The 'Blackmail Myth,'" especially 131-32)
176. Stephan Landsman, "One Hundred Years of Rectitude: Medical Witnesses at the Old Bailey," Law and History Review 16 (1998): 445-94
177. They were used to determine whether women accused of infanticide had in fact recently given birth, and they were also used in civil cases. James C. Oldham, "On Pleading the Belly: A History of the Jury of Matrons," Criminal Justice History 6 (1985): 1-64
178. See, for example, R. v Purse, OBP, 10 May 1780
179. Of the twenty-eight successful prosecutions in the Old Bailey for which it is possible to assess this factor, twenty-six included medical evidence presented by the prosecution. Relevant comments on both the importance of medical testimony and its inconclusive nature in such cases are included in Gammon, "'A Denial of Innocence,'" 85
180. Simpson, "Masculinity," 168-84 and 197-99
181. R. v Green, OBP, sessions ending 13 May 1769
182. Jan Bondeson, The London Monster: A Sanguinary Tale (Philadelphia: University of Pennsylvania Press, 2000)
183. Lisa Cuklanz, Rape on Trial: How the Mass Media Construct Legal Reform and Social Change (Philadelphia: University of Pennsylvania Press, 1996), 7
184. Jeremy Black, The English Press in the Eighteenth Century (Philadelphia: University of Pennsylvania Press, 1987), 104-8
185. Harvey J. Graff, The Legacies of Literacy: Continuities and Contradictions in Western Culture and Society (Bloomington: Indiana University Press, 1987), 230-48
186. Faller, Turned to Account, 207
187. Cynthia B. Herrup, A House in Gross Disorder: Sex, Law, and the 2nd Earl of Castlehaven (New York: Oxford University Press, 1999), 134
188. Hay makes general comments on the value of the press in inculcating respect for the law and its institutions. "Property." Roger Wells documents the expressed policy of newspapers in limiting coverage of riots for what they saw as the public interest. "Counting Riots in Eighteenth-Century England," Bulletin of the Society for the Study of Labour History no. 137 (Autumn 1978): 68-72
189. See also King, "Newspaper Reporting."
190. A conviction for attempted rape was warranted if a capital charge was unsuitable due to some "defect of evidence as to the completion of the offence . . . yet if in all other respects the injury be satisfactorily proved, it must . . . be considered to be full as aggravated as that which in the strictest notion of law is denominated rape" (Edward H. East, A Treatise of the Pleas of the Crown, 2 vols. [London: Butterworth, 1803], 1: 440)
191. A case in which all the elements of rape, including emissio seminis, were demonstrated could, depending on the court, be considered as attempted rape if penetratio in re itself was not considered to have been proven. Sir Matthew Hale, Historia Placitorum Coronae. The History of the Pleas of the Crown, new ed. By Sollom Emlyn and George Wilson, 2 vols. (London: T. Payne, 1800), 1: 627
192. Edelstein, "An Accusation," 378
193. Susan Staves recognizes the severity of this offense in her analysis of Henry Fielding's frequent and light-hearted references to "attempted rapes" in his novels. Staves correctly notes that these fictional events never come to the courts because they do not approach the level of severity the law used to define this crime. "Fielding and the Comedy of Attempted Rape," in History, Gender, and Eighteenth-Century Literature, ed. Beth F. Tobin (Athens: University of Georgia Press, 1994), 86-112
194. See, for example, R. v Larkin, OBP, sessions ending 6 July 1751
195. LSMB, September 1751
196. R. v Price, OBP, sessions ending 7 June 1764
197. LSMB, July 1764
198. R. v Freelove, OBP, sessions ending 13 July 1774
199. LSMB, October 1774
200. This rule was embedded in the law in Harmswood's Case, heard at Winchester Spring Assizes in 1787. East, A Treatise, 1:440
201. See also R. v Fyson, OBP, sessions ending 25 June 1788
202. "Vulnerability."
203. After stating the principle that a criminal trial may result in a conviction for a lesser offense, Joseph Chitty notes that: "The only exception to this rule seems to be, where the prisoner by being originally indicted for a different offence, would be deprived of any advantage which he would otherwise be entitled to claim; in which case the prosecutor is not permitted to oppress the defendant by altering the mode of proceedings. A defendant, therefore, cannot be found guilty of a misdemeanour on an indictment for felony, because he would by that means lose the benefit of having a copy of the indictment, a special jury, and of making his full defence by counsel" (A Practical Treatise on the Criminal Law. . . , 4 vols. [London: A. J. Valpy, Chitty 1816], 2: 638-69)
204. This was formally established in an arson case, R. v Doran, heard in the Old Bailey in 1790. Thomas Leach, Cases in Crown Law: Determined by the Twelve Judges by the Court of King's Bench: and by Commissioners of Oyer and Terminer, and General Gaol Delivery. . . , 3rd ed., 2 vols. (London: J. Butterworth, 1800), 2: 608-9
205. See Hawkins, A Treatise, 2: 440
206. I have found only two instances of dual prosecutions of this kind. Unsuccessful prosecutions of alleged rapists on both felony and misdemeanor counts at the same time were brought in 1742 and 1748. R. v Thompson, OBP, 15 January 1742
207. R. v Osborne, OBP, 12 December 1748
208. The rule persisted until passage of the Prisoners Counsel Act of 1836. Enactment of this statute is analyzed by David Cairns who, surprisingly, does not address its effect in this rationalizing of the rights of accused felons and misdemeanants. See Advocacy and the Making of the Adversarial Criminal Trial, 1800-1865 (Oxford: The Clarendon Press, 1998)
209. Beattie notes the absence of partial verdicts in rape cases but offers no comment on this (Crime and the Courts, 439-49)
210. The one discussion I have found which addresses this important trial rule in the context of rape prosecutions (in response to some remarks of my own) unaccountably denies its existence (Edelstein, "An Accusation," 361)
211. In Surrey, eighteen cases of rape and 33 of attempted rape were brought between 1660 and 1800. Conviction rates were about 15 percent and 64 percent respectively. Forty percent of the convicted rapists were hanged. All convicted on the lesser charge were presumably punished (Beattie, Crime and the Courts, 411 and 433)
212. In the Old Bailey between 1730 and 1790, 183 rape prosecutions were brought and 31 capital convictions obtained (17 percent). Fourteen of the thirty-one were hanged (see Table 1). In the Old Bailey and the City of London Quarter Sessions, which together heard but a small fraction of cases of attempted rape coming before trial juries in Metropolitan London, forty-one such cases were heard and twenty-one defendants convicted (Simpson, "Masculinity," 819-22)
213. At Kingston Assizes, William Fielder, who was obviously convicted of the misdemeanor, was reported to have been sentenced to one year's imprisonment "for ravishing his master's daughter" (Morning Post, 10 April 1777)
214. Herrup, A House in Gross Disorder, 115-54
215. See, for example, Shugg, "The Baron and the Milliner," 314
216. See Nazife Bashar, "Rape in England Between 1550 and 1770," in The Sexual Dynamics of History: Men's Power, Women's Resistance, ed. The London Feminist History Group (London: Pluto Press, 1983), 28-12
217. Outside of London there was, between the fourteenth and eighteenth centuries, "a virtual absence of such . . . felonies as rape." J. A. Sharpe, Crime in Seventeenth-Century England: A County Study (Cambridge: Cambridge University Press, 1983), 170
218. Bashar sees the late seventeenth century as the beginning of a period when the crime came to be seen more of an affront to the person than to men's property rights. She notes the statutory distinction between the crimes of rape and abduction as a crucial indicator of this ("Rape in England"). Simpson emphasizes an emerging ethos of masculinity and related sexual aggression as initially working-class phenomena associated with falling economic status ("Masculinity"). Anna Clark, whose concerns are for a rather later period, views sexual violence more functionally as a social instrument for inhibiting women's freedom outside of the home (Women's Silence). John Beattie associates a growing number of rape prosecutions with decreasing public tolerance for violence in general, and not to any increase in the prevalence of this crime (Crime and the Courts, 130-32)
219. For a supporting view, see Gatrell, The Hanging Tree, 447-93