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Ethnicity, Prejudice, and Justice: The Treatment of the Irish at the Old Bailey, 1750–1825

Published online by Cambridge University Press:  02 May 2013

Peter King
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Abstract

Using a unique source on offenders' place of birth, in combination with trial reports and newspapers, this article offers the first systematic analysis of how the Irish were treated by the English criminal justice system when they came as witnesses, prosecutors and accused. Although the Irish were massively over-represented amongst the accused, in the vast majority of Old Bailey cases – i.e. those involving property crime – they were no more likely to be convicted than other groups and overall the sentences they received were slightly less severe. However, doubts about their evidence and their reputation for violence meant that they were less successful as prosecutors and were more heavily punished when they were accused of violent offences. Thus the Irish were on the receiving end of both justice and prejudice and their treatment was intimately linked to contemporary English discourses about the Irish.

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Articles
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Journal of British Studies , Volume 52 , Issue 2 , April 2013 , pp. 390 - 414
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Copyright © The North American Conference on British Studies 2013 

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References

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18 P.P., 1828, vi (533), 77, 127–28, 257, 269.

19 P.P., 1822, iv (440), 63; P.P., 1828, vi (533), 25.

20 P.P., 1828, vi (533), 77, 127–28.

21 OBSP t17990220-62; Irish swearing by “the ten crosses of Christ ” Morning Chronicle, 23 September 1816.

22 OBSP t17970426-10.

23 OBSP t17991204-70 and The Times, 16 January 1821. For an earlier false alibi reference, see Fielding, Henry, An Enquiry into the Causes of the Late Increase in Robbers (Dublin, 1751), 88CrossRefGoogle Scholar.

24 Morning Chronicle, 19 February 1814.

25 King, Peter, Crime, Justice and Discretion in England, 1740–1820 (Oxford, 2000), 35–37CrossRefGoogle Scholar.

26 A person was defined as Irish in this OBSP survey only if he or she described himself or herself as Irish, or a witness did so and was not corrected by the Irish person concerned, or if the person spoke Irish.

27 It seems that ethnicity was more likely to be mentioned when the prosecutor was successful because reports on acquittals were often shorter. See Shoemaker, Robert, “The Old Bailey Proceedings and the Representation of Crime and Criminal Justice in Eighteenth-Century London,” Journal of British Studies 47, no. 3 (July 2008): 567CrossRefGoogle Scholar. The success of Irish prosecutors may therefore be slightly overestimated here.

28 OBSP t17980912-14; Bell's Weekly Messenger, 16 September 1798; General Evening Post, 13 September 1798; London Packet or New Lloyd's Evening Post, 27 August 1798.

29 King and Wood, “Black People,” indicates, for example, that they were less successful than black victims.

30 OBSP t17660116-2 and t17890909-9; Morning Star, 10 September 1789; OBSP t17990911-56, t17990220-6, and t17990220-62. For another intra-Irish highway robbery accusation that ended in acquittal, see OBSP t18110918-86.

31 OBSP t17850914-30 and t18050918-117; Observer, 14 July 1816.

32 The Times, 29 April 1819. The Bank of England allowed those who plea-bargained to be charged with a noncapital offense, but if they refused to bargain they were tried on a capital charge, and if they were convicted the bank's usual policy was to hang them. McGowen, Randall, “Managing the Gallows: The Bank of England and the Death Penalty, 1797–1821,” Law and History Review 25, no. 2 (June 2007): 254–64CrossRefGoogle Scholar.

33 OBSP t18011028-67, t18060416-1, t17920329-26, t18040411-82, t18081126-49, t17890909-14, t17550910-29, and t18080914-108; OBSP t18210214-104 and t17980418-60.

34 On the lower London courts, see Gray, Drew, Crime, Prosecution and Social Relations: The Summary Courts of the City of London in the Late Eighteenth Century (Basingstoke, 2009)CrossRefGoogle Scholar; Beattie, John, Policing and Punishment in London, 1660–1750: Urban Crime and the Limits of Terror (Oxford, 2001), 11–12CrossRefGoogle Scholar. While the Criminal Registers include all the accused, including those whose indictments were “not found” by the grand jury or found not guilty by the petty jury, the OBSP are less complete. They only listed those whose indictments were “found” by the grand jury and, unlike the Registers, they did not include the trials of those accused of misdemeanors such as minor riots.

35 Birthplace is, of course, only an approximate guide to ethnicity. Asked “what countryman” he was, one accused replied “he was born in London but he had spent most of his time in Ireland.” OBSP t18070513-22. Another told the court, “I was born in Ireland but bred in England.” OBSP t17940716-27. Some London inhabitants, such as children born to recent Irish migrants once they had settled in London, would have been thought of as Irish but not described as Irish born, and some of those born in Ireland may not have considered themselves Irish, but the great majority of those whom contemporaries thought of as Irish would have been Irish born.

36 King, Peter, “Female Offenders, Work and Life-cycle Change in Late-Eighteenth-Century London,” Continuity and Change 11, no. 1 (May 1996): 72CrossRefGoogle Scholar; 76 percent of 0–14-year-olds among the accused in 1791–1805 were London born. TNA, HO 26 1-11.

37 Lees, Lynn Hollen, Exiles of Erin: Irish Migrants in Victorian London (Manchester, 1979), 47Google Scholar, calculates 3.9 percent of the 1841 London population were born in Ireland. In 1851 the figure was 4.6. No figures are available for 1790–1805, but given the large Irish presence by that time in parishes such as St. Giles and the many eighteenth-century charitable recipients who were Irish (George, London Life, 118–22), 2 percent is almost certainly a minimum figure, while the substantial, increasing, and more permanent Irish migration between 1805 and 1841 makes it unlikely the figure was over 3 percent. Henderson, Tony, Disorderly Women in Eighteenth-Century London: Prostitution and Control in the Metropolis, 1730–1830 (Harlow, 1999), 19Google Scholar; P.P., 1828, vi (533), 304–18.

38 See Peter King, “Ethnicity, Nationality and Justice in Late Eighteenth and Early Nineteenth Century London” (Forthcoming).

39 TNA, HO 47/13/ 116-125 and HO 47/64/16. An Irishman of the “greatest simplicity” who spoke no English was sentenced to death at Chester for the rape of an infant on her evidence alone, despite the “probability of his innocence.”

40 Green, David, Pauper Capital: London and the Poor Law, 1790–1870 (Farnham, 2010), 74Google Scholar; George, London Life, 118–29; P.P., 1814–15, iii (473), 10. For links between the Irish poor's “great extremity of want” and the thefts they committed, see P.P., 1828, vi (533), 194–95; Lees, Exiles of Erin, 88–98.

41 The peak period for offending was the late teens and twenties. King, Crime, Justice, 188. In 1791–1805, 40 percent of London-born accused were aged 21–30; figures for Irish, Scottish, and Welsh migrants were 43, 41, and 35 percent. TNA, HO 26 1-11.

42 Myers, Reconstructing, 30; 10 percent of all Old Bailey accused were described as sailors, seamen, or as following water-based trades. In contrast, 53 percent of those born outside Europe and 31 percent of those from the rest of Europe were so described. Some contemporaries estimated nearly half of the Irish migrants in London were women, but a much smaller percentage of migrants from outside Britain were female. This was reflected in the fact that only 10 percent of the European-born accused were female, as were only 20 percent of the accused born outside Europe. TNA, HO 26 1-11.

43 The Irish represented 7 percent of burglars and housebreakers, 2 percent of horse thieves, and 6 percent of sheep and cattle thieves. TNA, HO 26 1-11; OBSP t17990508-21.

44 MacRaild, Irish Migrants, 162–63.

45 For a discussion of the impact of Irish migrants on the geography of murder, see King, Peter, “The Impact of Urbanization on Murder Rates and on the Geography of Homicide in England and Wales, 1780–1850,” Historical Journal 53, no. 3 (September 2010): 671–98CrossRefGoogle Scholar; King, Peter, “Urbanization, Rising Homicide Rates and the Geography of Lethal Violence in Scotland, 1800–1860,” History 96, no. 323 (July 2011): 254–56Google Scholar.

46 P.P., 1814–15, iii (473), 10; George, London Life, 123.

47 On contemporary discussions of proximity, poverty, and violence see Wood, John Carter, Violence and Crime in Nineteenth-Century England: The Shadow of Our Refinement (London, 2004), 101–04CrossRefGoogle Scholar. On “the effect of liquor upon the Irish, in every scene of deprivation and murder,” see P.P., 1817, vi (484), 340; on “the low Irish almost driven to madness by the drinking of spirituous liquors,” see ibid., 151. Cobbett's Weekly Political Register, 31 May 1806, linked these two factors.

48 For major Orange procession riots in Liverpool and Manchester, see Caledonian Mercury, 19 July 1819; Guardian, 11 May 1822; Swift, Roger, “Anti-Irish Violence in Victorian England: Some Perspectives,” Criminal Justice History 15 (1994): 129Google Scholar. The pardoning archive also contains evidence of prosecutions against Irishmen that arose from Orange Association clashes: TNA, HO 47/64/22.

49 OBSP t17990508-21; London Packet or New Lloyd's Evening Post, 21 January 1799; General Evening Post, 22 January 1799; Sun, 22 January 1799; Star, 11 May 1799; Craftsman or Say's Weekly Journal, 18 May 1799.

50 OBSP t18141026-44; Examiner, 9 October 1814; Morning Chronicle, 29 October 1814. For other fights with the police, see Morning Chronicle, 7 November 1809; Observer, 12 August 1798, 22 December 1811, and 5 July 1819, and OBSP t17560915-25.

51 OBSP t17690112-22 and t17840601-1. Irish chairmen were often hired in this role. George, London Life, 125. On the violence of Irish chairmen, see Anon., The Midnight Spy (London, 1766), 147Google Scholar.

52 Morning Chronicle, 7 September 1815. On Irish crowd reactions when London butchers burnt a “Paddy” in effigy in 1740, see George, London Life, 124–25.

53 Carter Wood, Violence, 4–5, 33, 47–69.

54 Conley, Carolyn, Melancholy Accidents: The Meaning of Violence in Post-Famine Ireland (Lanham, MD, 1999)Google Scholar, 17. By contrast, McMahon, Richard, “‘Do You Want to Pick a Fight Out of Me, or What Do You Want’: Homicide and Personal Animosity in Pre-Famine and Famine Ireland,” in Assaulting the Past: Violence and Civilisation in Historical Context, ed. Watson, Katherine (Newcastle, 2007), 221–49Google Scholar, emphasizes violence as a response to challenges to male honor.

55 On the heyday of faction fighting in late eighteenth- and early nineteenth-century Ireland, see Conley, Melancholy Accidents, 20; by the 1830s the police were beginning to suppress this tradition. McMahon, “‘Do You Want,’” 236.

56 P.P., 1816, v (510), 363; P.P., 1817, vii (484), 351–55; P.P.,1817, vii (233), 150; Morning Chronicle, 17 August 1814. Shelelas (or shillelaghs) were hardwood sticks used for fighting.

57 OBSP t18140216-42; for Castlebar men against Golvin men, t18090920-46; Dublin versus Munster, t18110918-86. On hostility between Tyrone and Antrim, see Swift, “Anti-Irish Violence,” 129.

58 For shoplifting, pickpocketing, and stealing in the dwelling house, 68.2 percent of all accused and 66.4 percent of Irish accused were convicted. For indirect appropriation (forgery, fraud, coining, etc.), figures were 44.9 and 48.0 percent. For housebreaking and robbery, 45.6 and 49.5 percent. See TNA, HO 26 1-11.

59 For other rape convictions against the Irish, see Observer, 15 March 1824 and OBSP, t19620714-34 and t17680413-30. In 1768 it was suggested that an Irishman was capitally convicted for rape despite poor evidence mainly because he was not wealthy enough to “have procured attorneys and advocates.” Gazetteer and New Daily Advertiser, 2 May 1768. In all, 38 accusations of rape were recorded from 1791 to 1805, and 9 of these involved Irish accused. Only 5 were convicted and sentenced to hang, including 4 Irish.

60 The Irish were two-thirds more likely to be imprisoned partly because they were mainly accused of less serious forms of indirect appropriation—uttering base coin rather than forgery. Irish utterers may have had lighter sentences partly because they were women. Colquhoun, A Treatise, 120, “Irish women are the chief utterers and colourers of base silver.”

61 Nicholas, Stephen and Shergold, Peter, “Transportation as Global Migration,” in Convict Workers; Reinterpreting Australia's Past, ed. Nicholas, Stephen (Cambridge, 1988), 45Google Scholar. Transportation was widely used against offenders by the Irish courts, and the large-scale transportation of the 1798 rebels attracted considerable criticism, which may conceivably have influenced English judges. The Irish were notorious for using the vagrancy laws to meet their own strategic needs, that is, free repatriation, and it is possible they were also suspected of attempting to get a free passage to Australia. On juveniles, see King, Peter, Crime and Law in England: Remaking Justice from the Margins (Cambridge, 2006), 131CrossRefGoogle Scholar; Shore, Heather, Artful Dodgers: Youth and Crime in Early Nineteenth-Century London (Woodbridge, 1999), 134Google Scholar.

62 When Old Bailey cases in which we know the accused was Irish are traced in newspaper reports, the place of origin of the accused is often not described, and when the defendant is described as Irish, this is rarely given prominence.

63 Seleski, “Identity,” 27. By 1796 there were 50,000 Irishmen in the British army and more than 100,000 were recruited between 1800 and 1805. Brown, Jean and Brown, Desmond, Heroic Option: The Irish in the British Army (Barnsley, 2005), 24Google Scholar.

64 Seleski, “Identity,” 11.

65 Ibid., 12.

66 Macraild, Donald, The Irish in Britain, 1800–1914 (Dundalgan, 2006), 14–16Google Scholar.

67 P.P., 1817, vii (484), 363; P.P., 1814–15, iii (473), 11–13. However, specific permanent Irish gangs (whether based on regions within Ireland or not) were rarely if ever noted either in these hearings or in newspaper reports.

68 P.P., 1828, vi (533), 193: P.P., 1817, vii (484), 351.

69 P.P., 1828, vi (545), 46.

70 Guardian, 9 June 1821; Caledonian Mercury, 7 June 1821.

71 Morning Chronicle, 15 September 1815; Observer, 28 December 1817.

72 The Times, 1 March 1819.

73 The Times, 3 December 1821.

74 Guardian, 30 July 1825.

75 The Times, 2 October 1824.

76 Observer, 22 March 1824.

77 On the “Irish as the inevitable scapegoats, the historic ‘other,’ on hand to blame,” see Feldman, David, “Migration,” in The Cambridge Urban History of Britain; Volume III, 1840–1950, ed. Daunton, Martin (Cambridge, 2000), 196–97Google Scholar; Nijhar, Preeti, “Imperial Violence: The ‘Ethnic’ as a Component of the ‘Criminal’ Class in Victorian Britain,” Liverpool Law Review 27, no. 3 (December 2006): 338–40Google Scholar.

78 On growing discussion of the Irish in writing about crime, see Irish Migrants in Britain, 1815–1914: A Documentary History, ed. Swift, Roger (Cork, 2002), 101–13Google Scholar; Swift, Roger, “Another Stafford Street Row: Law, Order and the Irish Presence in Mid-Victorian Wolverhampton,” in The Irish in the Victorian City, ed. Swift, Roger and Gilley, Sheridan (London, 1985), 179–206Google Scholar; Swift, “Heroes,” 413.

79 Gray, Crime; Shoemaker, Robert, Prosecution and Punishment: Petty Crime and the Law in London and Rural Middlesex, 1660–1725 (Cambridge, 1991)Google Scholar; Landau, Norma, “Indictment for Fun and Profit: A Prosecutor's Reward at Eighteenth-Century Quarter Sessions,” Law and History Review 17, no. 3 (Autumn 1999), 507–36CrossRefGoogle Scholar; King, Peter, “The Summary Courts and Social Relations in Eighteenth-Century England,” Past and Present 183 (May 2004): 125–75CrossRefGoogle Scholar.

80 Journal of the Statistical Society 43 (1880): 446Google Scholar.

81 Swift, “The Historiography”; P.P., 1834, xvi (600), 10.

82 Brookes, The General Gazetteer.

83 Based on searches of the HO 47 Catalogue. Petitioners sometimes pleaded their Irishness in mitigation and their recent migration as a reason for not producing character witnesses: TNA, HO 47/14/45.

84 A confusion well expressed by the Morning Chronicle in 1818: “There is in the Irish character, a combination of qualities, apparently so opposed to each other, as might puzzle the soundest craniologist; great levity and heedlessness, combined with no small share of shrewdness, under a cloak of simplicity; . . . great activity of mind, with much indolence of body . . . a marked spirit of resistance to the restraints imposed by human law; fearless of death, impetuous, impatient of injury or insult, revengeful yet grateful in the extreme for benefits conferred.” Morning Chronicle, 23 September 1818.

85 To say this is not to return to old overpolarized arguments about the legitimacy or illegitimacy of the law. Hay, Douglas, “The Criminal Prosecution in England and Its Historians,” Modern Law Review 47, no. 1 (January 1984): 9CrossRefGoogle Scholar; King, Crime, Justice; Lemmings, David, introduction to The British and Their Laws in the Eighteenth Century, ed. Lemmings, David (Woodbridge 2005), 3–5Google Scholar. Justice applied rules that mattered and which were not just a sham. See Gatrell, V. A. C., The Hanging Tree: Execution and the English People, 1770–1868 (Oxford, 1994), 515–16CrossRefGoogle Scholar.