Criminal Historian

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Category: law and legislation

Plagium: how stealing a child in Victorian Scotland was punished

from the Morning Chronicle, 3 August 1855

In 1855, the Morning Chronicle in London published a list of capital punishments in Scotland (see above). The English media often covered Scottish affairs in a similar way to how it would publish stories about mainland Europe – highlighting its difference and ‘foreignness’ rather than claiming common ground with it.

So here, the list of Scottish capital crimes included several ones specific to Scottish law, with the speechmarks round them emphasising their ‘un-English’ nature. So we have hamesucken – a felony relating to a premediated assault, whereby a person was attacked in his own home – for example, and notour adultery.

Notour adultery, as opposed to the other offence of simple adultery, was, according to Henry Tebbs’ Essay on the Scripture Doctrines of Adultery and Divorce and on the Criminal Character and Punishment of Adultery (1821) , ‘the conduct of open and incorrigible adulterers, unreformed by the censures of the church, where they keep company publicly together, and procreate issue’ – in other words, adultery that resulted in the birth of children.

Stouthrief, also mentioned in the article, was a form of theft committed by force – so where a person was threatened with violence, or had violence committed against him, during a housebreaking.

Whereas hamesucken was where assault was the primary motive for a housebreaking, stouthrief suggested that the assault was incidental, or a secondary motivation, to the actual theft.

Furtum grave was an aggravated theft, deriving from the Latin ‘furtum’ (theft), where the amount of goods stolen might be particularly high.

The lack of understanding about Scots law was clear in the inclusion of ‘flagium’ as an offence; this was actually plagium, which was again a form of theft, but this time the theft of a person!

Detail from ‘French peasants finding their stolen child’ by P Calderon (Illustrated London News, 15 October 1859)

Akin to modern-day abduction, it commonly involved children, such as a case in 1844, when Helen Wade was charged with plagium at Glasgow when she ‘did, wickedly and feloniously, steal and theftuously carry away’ three-year-old Catherine Hamilton.

Catherine, an illegitimate child, had been living with her mother (although possibly another relative), hand-loom weaver Betty Hamilton, renting rooms with Helen Fleming on the Main Street of Camlachie; she was snatched from that road on 5 April 1844.

The next day, Helen Wade inquired for a ticket to board a ship to Liverpool. Viewed with suspicion by the ticket agent, she was asked about the child with her, and ‘declared that the child was her own, and told a false story about its father’.

They were still given a ticket, though, and it was only in Liverpool that Catherine Hamilton was retrieved and returned to her mother in Scotland.

Helen Wade was found guilty of plagium, but it was noted that in several previous cases of its type, the death sentence had been commuted to transportation for life.

Helen’s case was considered not as serious as others, and this, plus the rarity of convictions for plagium by the 1840s, meant that this defendant was ‘lucky’ enough to receive seven years’ transportation instead (case reported in Archibald Broun, Reports of Cases before the High Court and Circuit Courts of Justiciary in Scotland during the years 1844 and 1845, vol 2 (T & T Clark, Edinburgh, 1846)).

The types of capital offence listed by the Morning Chronicle show the continuing importance placed on property by the law. Although this article tried to make Scots criminal law sound alien, it actually reflected concerns both in Scotland and the rest of Britain, about looking after one’s goods, one’s livelihoods – and one’s relatives, too.


NB: Sir George Mackenzie’s 1699 book, The Laws and Customs of Scotland in Matters Criminal, is a fascinating read if you’re interested in criminal offences in Scotland, and available for free on Google Books.

Marital coercion and the wife who got away

1840s pictureAt common law, married women could avoid being convicted of certain offences simply by the fact that they were married. Coverture meant that women were, to an extent at least, legally subsumed by their husband – they lost some property rights, for example, although the extent to which this occurred in practice has been debated. But under certain circumstances, wives benefitted, as husbands could be found to be accountable for property offences committed by their wives.

There were restrictions on how far this could be taken, of course. As Garthine Walker has noted, the woman had to have been charged with a felony offence, rather than a misdemeanour, and she had to be found to have stolen by the constraint of her husband – it was not enough to have committed a theft in your husband’s absence, even if he had bullied or cajoled you, if there was no evidence of constraint.

Yet, as Peter King has argued, there was a grey area. Because of the differing, even conflicting, views of the courts and individuals about how to apply coverture in these cases, throughout the late 18th and early 19th centuries, married women were more likely than single women to avoid prosecution for such offences.

Although a different type of case, one 1844 trial involving a married woman similarly hinged on whether she had acted freely, or whether her husband had forced her into committing an offence, and shows how the courts could be influenced by a woman’s marital situation, and the concept of coercion. The courts may also have been more reluctant to convict a woman of an offence where a man might have been found guilty.

24-year-old Jane Bannon was tried at the Warwick Crown Court on 7 August 1844 of trying to help her husband escape from prison. Benjamin Bannon, Jane’s husband, then aged 28 and a wool stapler, had been convicted of coining offences at the Warwickshire Assizes just over three months earlier (on 30 March), and sentenced to 14 years’ transportation. He was still in prison awaiting this sentence, and it was alleged that Jane had smuggled a lifting-jack, a spanner, a saw and a pair of scissors to him, to enable him to break out.

Details of Benjamin's offence, from Ancestry

Details of Benjamin’s offence, from Ancestry

It was proved that Jane had indeed got these implements, and taken them to her husband – but the judge told the jury that they had to decide whether she had acted as a ‘free agent’ or whether she had acted ‘under the control of her husband’. If the former, she was guilty of aiding the escape of a prisoner; if the latter, she was innocent in terms of the law.

The jury duly returned a verdict of not guilty, believing that Jane had been made to obey her husband’s instructions. The verdict met with the ‘evident satisfaction of a crowded court’, and Jane could walk free.

Details of Jane's offence, from Ancestry

Details of Jane’s offence, from Ancestry

Her husband, though, was not so lucky. He had failed to escape from prison, and he would fail to avoid his sentence. He was given training as a tailor in prison, but two years after being convicted, on 22 June 1846, he left England on the convict ship Maitland. He arrived at Port Phillip Bay, Victoria, on 9 November that year, with 298 other passengers. From Port Phillip Bay, he was taken the short journey to Williamstown – now a Melbourne suburb, but at that time a nine-year-old port, where a 30 metre stone jetty had been built by convict labour in 1838.

Both Benjamin and Jane vanish from the archives at this point; Jane was not found to have acted as a ‘free agent’ in 1844, but once her husband was on the other side of the world, she was certainly more free than he was.



References: Garthine Walker, ‘Crime and the Early Modern Household’, in Helen Berry and Elizabeth Foyster (eds), The Family in Early Modern England (CUP, 2007), p.75; Peter King, ‘Female offenders, work and lifecycle change’ in Continuity and Change, 11 (1996), pp.67-68; Shani D’Cruze and Louise A Jackson, Women, Crime and Justice in England since 1660 (Palgrave Macmillan, 2009); Coventry Herald, 16 August 1844; Ancestry

The perceived perils of having female jurors

Charles_Dana_Gibson_(1902)_Studies_in_expression._When_women_are_jurors_(compressed)I love The Guardian‘s use of archival material on its website; one of the many stories from its archive that I’ve enjoyed looks back at the first woman jurors at the Central Criminal Court – formerly the Old Bailey.

Only 30 years prior to The Guardian’s story, a joke made the rounds of the press that mocked women’s ability to be objective jurors:


First Female Juror (some years hence): “There seems to be no doubt that the prisoner, Mr Handlecash, stole 100,000 from the company that employed him. Was he indulgent to his wife?

Second Female Juror: “Yes, indeed. He gave her everything she wanted.”

Third Female Juror: “She had just a lovely time – trips to Europe, Worth’s dresses, opera box, everything.”

Verdict: We, the jury in the case of Mr Handlecash, find that the prisoner was an over-indulgent husband, who should be reprimanded by the court, the company to pay the costs.

(Shields Daily Gazette, 23 January 1892)

Yet within a few years of female jurors appearing in court, the papers were stating that the opposite case was true; that an outcry had previously been raised over women jurors “as they were callous and unsympathetic and especially prone to severity in the case of male offenders”.

In one case at the Gloucestershire Quarter Sessions in 1926, it was recorded that “one of the ladies of the jury” had insisted on a male thief being dealt with leniently because he was surely a first offender. She had to be disabused of that by the judge, who pointed out that the thief had a 16 year history of offences, and several prior convictions, before pleading guilty in this particular case. (Western Daily Press, 1 July 1926)

Other contemporaries had argued that women shouldn’t be in the jury box because juries were a place for “calm, cold, analytical reasoning, and not for unfortunate displays of uncontrolled emotion”. (Yorkshire Evening Post, 30 November 1926) The Gloucester woman may have been regarded in this light, looking at a man and believing that he could not have committed any prior offence because of his face, or his looks, or his demeanour.

It was clear that having women on juries prompted a wide range of feelings – women were too emotional or not emotional enough; prone to agree with female testimony and disagree with male. One report about the first female jurors in London noted that out of four women sworn in, two had asked to be excused:

“The first said that she had an aged mother of 83 whom she was unable to leave, and the Judge at once accepted her excuse. The second said she had a tobacconist’s business, and had no assistant to look after it while she was away. She was released.”

The other two women were keen to serve; and perhaps this one case suggests that many women wanted to be a part of the process, and only sought to escape it when they had caring or business responsibilities that had to come first. However, this was not always the case. On the second jury sworn in at the Central Criminal Court was one woman who sought to excuse herself:

“I have not the time, and I am so awfully nervous that I don’t think I am suitable.”

The Common Serjeant: I don’t think I can accept that excuse, or I should get no ladies at all.”

“I am sure there are numbers who would enjoy it,” rejoined the lady quickly.

“Who are more strong-minded than yourself?” asked the Judge.

“Yes,” said the lady. She was excused.

(Western Daily Press, 12 January 1921)

This dialogue shows that some men regarded women as fundamentally unsuited to jury work due to their ‘nervousness’ and emotion; but women themselves recognised that they were all different, and that for every one who was reluctant to serve, another would greatly enjoy the opportunity.




Still Reading The Riot Act

Continuing my weekend of marking the 300th anniversary of the Riot Act, here are my final five events and facts linked to this piece of legislation.

6. Rioting at the Races

Henri_Julien_Dumont_-_At_the_racesA horse race in County Down resulted in the Riot Act being read in 1813. A group of around 12 local men had gathered at the Downpatrick Racecourse on 22 July with the aim of “annoying the soldiers” – members of the East Middlesex Militia had been drafted in to control the rather exuberant crowds, members of which were said to be “not quite sober”. Unluckily for the mob, a local magistrate, William Montgomery, had been attending the races, and saw a “rush” of men start rioting. The anti-English sentiment towards them was clear, with the rioters referring to the “English buggers”. Montgomery shouted, “Fire, soldiers, or we shall all be killed!” The soldiers duly started firing shots, the magistate read the Riot Act out, and the mob was “intimidated” and dispersed.

7. Freemen’s perks

Bundesarchiv_Bild_135-S-16-19-12,_Tibetexpedition,_SchafIn Worcester, freemen of the city were allowed to let their cattle graze on a piece of ground in the city’s centre. ‘Certain encroachments’ had been made on the ground by others in August 1817 – apparently the illegal construction of buildings and fences – of and at a special committee meeting of the freemen, it was decided to serve notices on some of the ‘encroachers’, but only the ones whose constructions ‘appeared the most obnoxious’. This led to rioting and the destruction not only of some of the encroachments but also of inhabited houses. Magistrates ran to the scene and read the Riot Act, but when the crowd refused to move on, the decision was made to bring in the Worcestershire Yeomanry Cavalry. Their mere presence was enough to make the crowd disperse, but it was noted that the place attacked now presented “a singular scene of devastation”. 12 people were committed to the city’s gaol for rioting or abetting the rioters.

8. Peterloo and Press Bias

Peterloo, by Richard Carlile, from Manchester Library

Peterloo, by Richard Carlile, from Manchester Library

The Riot Act was used, notoriously, in the Peterloo Massacre of 1819 – it was read prior to the massacre, when cavalry charged the crowd that had gathered in Manchester’s St Peter’s Field for a meeting where parliamentary reforms would be demanded. Shortly after the meeting had started, local magistrates had called on its speaker, radical Henry Hunt, to be arrested and for the crowd to be dispersed under the Riot Act, which was duly read out at 1.30pm on 16 August. The Morning Post, reflecting the view of the establishment, described the radicals as “menacing”. The paper believed that the Riot Act resulted in a “masterly” result for the authorities, with the key radicals being taken into custody. In reality, 11 people were killed during the event, after militia, on horseback, charged into the protesters. [The Morning Post, 19 August 1819]
9. Escaping the Mob

1880s depiction of the Queen Square riots

1880s depiction of the Queen Square riots

In 1831, the Riot Act was read at the Queen Square Riots in Bristol. A mob had gathered to protest at the rejection of the second Reform Bill by the House of Lords. The bill had sought to give Bristol and some other cities greater representation in the Commons. The riot started at the new Bristol Assize Courts which were being opened by a local magistrate who was anti-reform, Sir Charles Wetherell. He threatened to imprison protesters, and they chased him to the Mansion House on Queen Square, where he escaped in disguise. Troops were called in during the subsequent three day riot, and four men were eventually hanged.
10. Death to Rioters

1919 copy of the Riot Act (original held in the West Midlands Police Museum)

1919 copy of the Riot Act (original held in the West Midlands Police Museum)

The Riot Act included clauses relating to crowds damaging property, such as churches, houses, barns and stables. Anyone who caused such damage could, under the Act’s provisions, be sentenced to death without benefit of clergy. Individuals could be sentenced to death under the Riot Act’s provisions until 1837, when the Punishment of Offences Act reduced the penalty to transportation for life.



For the first part of my Riot Act weekend, see here.

Reading The Riot Act

300 years ago today, on 1 August 1715, the Riot Act came into force. Introduced as a response to a series of civil disturbances that had taken place across England over the previous five years, it was intended to introduce a quicker way of punishing rioters.

Over the next two days, I’ll look at the Act’s history and how different groups of people – from theatre audiences and racegoers to dockers and stocking weavers – came under its remit.
1. A Baker’s Dozen?

riotact1The act (1 Geo I, s.2) made it illegal for 12 or more people to “unlawfully assemble and disturb the public peace”. They now had to disperse within an hour of being read a specified portion of the act, or be considered guilty of felony. In some cases, there was doubt as to how many individuals had assembled, and it seems that numbers may have been rounded up or estimated on occasion, to get to the necessary dozen. Several press reports about riots that had resulted in the Riot Act being read referred to “between ten and 12” rioters being involved, or “around 12”.
2. Riot Act Confusion

The Gordon Riots

The Gordon Riots

There could be confusion over whether the Riot Act had been properly read or not during an assembly. In the aftermath of the 1768 St George’s Fields Massacre, for example, there was doubt over whether it had actually been read. During the 1780 Gordon Riots, there was additional confusion, with the authorities being unsure whether they could stop the rioters without reading the Riot Act. Afterwards, Lord Mansfield explicitly stated that authorities could still use force to stop violence during a riot – the Riot Act simply created a further offence of failing to disperse after it had been read.
3. The Dung Wharf Riot

The Thames Marine Police headquarters in Wapping (own photo, taken in the Thames Police Museum)

The Thames Marine Police headquarters in Wapping (own photo, taken in the Thames Police Museum)

In 1798, the wonderfully named Dung Wharf Riot in Wapping took place. It was a response to the formation of a new, privately funded police force that aimed to stop the problem of thefts from ships, dockyards and storage yards on the Thames. The Thames Marine Police were resented by many local workers, for whom the thefts represented a valuable supplementary income. During the subsequent riot, the famous magistrate Patrick Colquhoun – one of the Marine Police’s founders – came out of his office to read the Riot Act. However, although the rioters briefly dispersed, they then gathered again and a local off-duty officer was killed. One of the rioters was hanged, but the Marine Police continued. [I wrote about this riot for Who Do You Think You Are? magazine; their podcast, featuring me talking about Dung Wharf, can be found here.]

4. A Theatrical Riot

new theatreThe opening of the New Theatre in Covent Garden on 18 September 1809 nearly led to the Riot Act being called. Shakespearean actor John Philip Kemble started to read an address to the audience, but couldn’t make himself heard over the over-excitement of the theatre goers. When he gave up and walked off stage, the audience started shouting – there was a “clamour and jarring of discordant vociferation, some calling, off! Off! And others, go on! Go on!”. A local magistrate, Justice Read, and his colleagues from the Bow Street police office turned up, but on seeing him produce a paper – widely believed to be a copy of the Riot Act – the audience hissed him until he gave up. After singing God Save The King very loudly, several times, the audience eventually gave up, but not until “a very late hour”. The night was the first in what became the  Old Price Riots – three months of discord that originated with rising ticket prices.
5. A Funereal Reading of the Riot Act

760px-Lee's_knitting_frameProblems in the Nottingham hosiery industry led to many stocking-weavers there being laid off. Reduced to a state of near starvation and reliance on parish relief as a result of economic pressures, the men were then driven to despair when many employers introduced the new wide stocking frames, which needed less manual labour. The weavers started to break into manufacturers’ premises to destroy these frames – in one day, they destroyed 53 frames in Sutton, Notts, alone. One man was shot and several more injured. When the funeral of the shot man took place, the High Sheriff, Under Sheriff and six magistrates turned up, acompanied by a group of constables and 30 mounted dragoons. The Riot Act was read, and as the coffin was being lowered into the grave, the High Sheriff announced that an hour had elapsed since the Act had been read, and that mourners would be arrested if they did not immediately disperse. The funeral ended rather quickly as a result.
Numbers 6 to 10 in my list of cases where the Riot Act was read will be published tomorrow.

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