Tales from the Hanging Court (review)

The launch of the Old Bailey Online project [oldbaileyonline.org] in 2003 transformed the study of crime in early modern Britain and enriched our understanding of early modern history. Tim Hitchcock and Robert Shoemaker’s successful efforts to digitize the Proceedings of the Old Bailey provide researchers, instructors, and students with an invaluable resource in the form of 197,745 criminal trials held at London’s central criminal court between 1674 and 1913. The collection brings together extant records in one website that is fully searchable by name, verdict, offence, and punishment.

With dramatic stories, well written analysis, and economical descriptions of the stages of legal process in the eighteenth century, the latest collaboration between Hitchcock and Shoemaker is a compelling book that effectively showcases the richness and variety of the Proceedings of the Old Bailey, also known as the Old Bailey Sessions Papers, as a source for legal, cultural, and social history. Tales from the Hanging Court is a wonderful introduction to legal London and an invaluable teaching tool which will acquaint students and non-specialists with the eighteenth-century courtroom.

The book’s chapters follow the history of crime from perpetration and discovery through the trial to an examination of the types of punishment available to authorities in the eighteenth century. In the first chapter, aptly called “Stop Thief!” the authors explain that in the absence of a paid police force the English system relied on victims and witnesses to come forward to apprehend, identify, and testify against those accused. Chapter two explores murder and other “Crimes of Blood.” The chapter on “The Trial” presents the development of the adversarial trial shaped as it was by the introduction of lawyers – first for the prosecution and followed by lawyers for the defense - into the courtroom. As the authors point out, “90 percent of trials involved offences against property” which were “divided into an ever growing number of discrete capital offences” in the ‘Bloody Code.’” (p. 157). “Crimes of Greed, Crimes of Lust,” chapter four, features the centrality of property in eighteenth-century society and culture as reflected in the kinds of crimes that were prosecuted and the willingness of prosecutors to divulge their own moral transgressions in the pursuit of the recovery of stolen goods. Beginning with the Tyburn Fair and the carnivalesque atmosphere of hanging day, the final chapter titled “Retribution” discusses punishment in the eighteenth century. The impossibility of enforcing the ‘Bloody Code’ with its ever growing list of capital offenses, questions about the effectiveness of the small number of hangings that were supposed to deter crime through example, and the Enlightenment debates about the morality of capital punishment led to the development of alternative, non-capital punishments such as transportation to the North American colonies until the Revolutionary War, then to the western coast of Africa, and finally to Australia. Lesser punishments such as the pillory also find their way into this chapter as does the emergence of incarceration as the punishment of choice and the rise of the prison which is discussed through an examination of jail breaks.

The authors seem to agree with John Langbein that the adversarial trial that emerged by the end of the eighteenth century somehow contaminated the unmediated altercation that had existed previous to the entrance of lawyers into the courtroom. This interpretation of the trial before the lawyers sets up the reader to imagine the earlier trials as pure confrontation between defendant and prosecutor, accused and victim. One must be cautious about such a setting in which the jury and the judge were always present as were their interjected opinions and questions, not to mention the defendants’ witnesses, protectors and detractors alike. The lawyering may have been minimal before the eighteenth century, but this representation of the courtroom without lawyers does not take into consideration other forces and influences at work. The authors also neglect to problematize the Proceedings themselves as a source, their authorship, reliability, and completeness, along with their role as official propaganda of...