Law and order in Georgian England
Investigating and prosecuting crime
In the 1740s, when the Cragg and Fidelis books are set, there was no police force in England. There were officers elected at parish level to act as sergeants, constables and watchmen, under the control of magistrates, but the investigative power of these officials was comparatively feeble, limited by tradition and by the fact they were a “citizen-officers” and not professionals. It was notorious that many of these men carried out their tasks, if at all, with little enthusiasm or commitment. A high proportion chose to subcontract the job by paying an individual willing to take over their duties. Such men as Oswald Mallender in the Cragg and Fidelis stories thus became semi-permanent, salaried law officers, but they were rarely men of high quality or integrity.
In most cases the job of investigating and prosecuting a crime was the responsibility of the victim. In relatively small local communities this “privatized” justice system could be effective, but many crime victims were content to by-pass the law to avoid meeting the expense of a prosecution, which would entail paying a lawyer and court fees. As a result, cases were frequently informally “settled out of court”, in much the same way that civil cases often are today. In cases of murder, however, the procedure was different. Where no prosecutor came forward the magistrates would initiate prosecution on behalf of the crown. The historic reason for this was that the crown had its own interest in finding and convicting murderers: all the personal goods belonging to these offenders were forfeit to the Treasury.
Murders and other serious cases (rape, arson, highway robbery) were tried at Assize by judges from London travelling “on circuit”. Court procedure was very different from that of today. Those accused had to defend themselves as best they could and, unless they were educated and literate, the scales of justice weighed heavily against them.
The majority of other criminal cases – different forms of assault and theft, fraud, poaching, prostitution – were dealt with in a variety of ways. Some were heard at quarter sessions, others at Mayoral courts , or by magistrates sitting in their own courts. Magistrates (also known as Justices of the Peace) were volunteer members of the gentry and (in towns) of the merchant class, and their idea of justice was summary and not necessarily impartial.
There was in England little provision for imprisonment (except for debtors). The majority of minor crimes were punished by such means as a fine, a whipping or a few hours in the stocks. More serious crimes – murder, rape, serious assault, all stealing except petty theft – attracted a mandatory sentence of death, though in practice many such cases were commuted by royal pardon to transportation to America, either for life or for a fixed term.
The Coroner’s role.
The coroner is one of the most ancient public offices, with its origins in the collection of money and property owing to the crown. Since, for many centuries, the personal belongings of murderers (including “self-murderers”, or suicides) were forfeit to the crown, the coroner enquired into all unexpected deaths in order to uncover cases of murder or suicide and to make sure that the crown got its due. For exactly the same reason, the coroner looked into questions of treasure trove, and of shipwreck, where money and goods recovered would also accrue to the royal treasury.
The coroner’s court was an enquiry held before a jury, which was charged to decide on the cause of any questionable death, and on the status of a treasure or a shipwreck. Coroner’s juries could until relatively recently find an individual guilty of murder though in such cases the person would go on to be formally tried at Assizes.
The coroner’s role in a community was unique because he was not accountable to the local government, but only to the crown. This crucially allowed men like Titus Cragg – independent-minded men of integrity – to operate without and even against the pressure of local interests, and to pursue their own ideas about justice and equity.