Chapter VIII: After Speenhamland (2)

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With the general growth of upper-class riches and luxury there came over shooting a change corresponding with the change that turned hunting into a magnificent and extravagant spectacle. The habit set in of preserving game in great masses, of organising the battue, of maintaining armies of keepers. In many parts of the country, pheasants were now introduced for the first time. Whereas game had hitherto kept something of the wildness, and vagrancy, and careless freedom of Nature, the woods were now packed with tame and docile birds, whose gay feathers sparkled among the trees, before the eyes of the half-starved labourers breaking stones on the road at half a crown a week. The change is described by witnesses such as Sir James Graham and Sir Thomas Baring, magistrates respectively in Cumberland and Hampshire, before the Select Committee on Criminal Commitments and Convictions in 1827. England was, in fact, passing through a process precisely opposite to that which had taken place in France: the sport of the rich was becoming more and more of an elaborate system, and more of a vested interest. This development was marked by the growth of an offensive combination among game preservers; in some parts of the country game associations were formed, for the express purpose of paying the costs of prosecutions, so that the poacher had against him not merely a bench of game preservers, but a ring of squires, a sort of Holy Alliance for the punishment of social rebels, which drew its meshes not round a parish but round a county. Simultaneously, as we have seen, a general change was coming over the circumstances and position of the poor. The mass of the people were losing their rights and independence; they were being forced into an absolute dependence on wages, and were living on the brink of famine. These two developments must be kept in mind in watching the building up of the game code in the last phase of the ancient régime.

The Acts for protecting game passed after the accession of George III. are in a crescendo of fierceness. The first important Act was passed In 1770. Under this Act any one who killed game of any kind between sunsetting and sunrising, or used any gun, or dog, snare, net, or other engine for destroying game at night, was, on conviction by one witness before one Justice of the Peace, to be punished with imprisonment for not less than three months or more than six. For a subsequent offence he was to be imprisoned for not more than twelve months or less than six, and to be whipped publicly between the hours of twelve and one o’clock. This was light punishment compared with the measures that were to follow. In the year 1800, the year of Marengo, when all England was braced up for its great duel with the common enemy of freedom and order, and the labourers were told every day that they would be the first to suffer if Napoleon landed in England, the English Parliament found time to pass another Act to punish poachers, and to teach justice to mend her slow pace. By this Act when two or more persons were found in any forest, chase, park, wood, plantation, paddock, field, meadow, or other open or enclosed ground, having any gun, net, engine, or other instrument, with the intent to destroy, take, or kill game, they were to be seized by keepers or servants, and on conviction before a J.P., they were to be treated as rogues and vagabonds under the Act of 1744, _i.e._ they were to be punished by imprisonment with hard labour; an incorrigible rogue, _i.e._ a second offender, was to be imprisoned for two years with whipping. Further, if the offender was over twelve years of age, the magistrates might sentence him to serve in the army or navy. If an incorrigible rogue escaped from the House of Correction he was to be liable to transportation for seven years.

Two consequences followed from this Act. Now that punishment was made so severe, the poacher had a strong reason for violence: surrender meant service in a condemned regiment, and he therefore took the risks of resistance. The second consequence was the practice of poaching in large groups. The organisation of poaching gangs was not a natural development of the industry; it was adopted in self-defence.[347] This Act led inevitably to those battles between gamekeepers and labourers that became so conspicuous a feature of English life at this time, and in 1803 Lord Ellenborough passed an Act which provided that any persons who presented a gun or tried to stab or cut ‘with intent to obstruct, resist, or prevent the lawful apprehension or detainer of the person or persons so stabbing or cutting, or the lawful apprehension or detainer of any of his, her, or their accomplices for any offences for which he, she, or they may respectively be liable by law to be apprehended, imprisoned, or detained,’ should suffer death as a felon. In 1816, when peace and the fall of prices were bringing new problems in their train, there went through Parliament, without a syllable of debate, a Bill of which Romilly said that no parallel to it could be found in the laws of any country in the world. By that Act a person who was found at night unarmed, but with a net for poaching, in any forest, chase, or park was to be punished by transportation for seven years. This Act Romilly induced Parliament to repeal in the following year, but the Act that took its place only softened the law to the extent of withdrawing this punishment from persons found with nets, but without guns or bludgeons: it enacted that any person so found, armed with gun, crossbow, firearms, bludgeon, or any other offensive weapon, was to be tried at Quarter Sessions, and if convicted, to be sentenced to transportation for seven years: if such offender were to return to Great Britain before his time was over, he was to be transported for the rest of his life.[348]

This savage Act, though by no means a dead letter, as Parliamentary Returns show, seems to have defeated its own end, for in 1828 it was repealed, because, as Lord Wharncliffe told the House of Lords, there was a certain reluctance on the part of juries to convict a prisoner, when they knew that conviction would be followed by transportation. The new Act of 1828, which allowed a person to be convicted before two magistrates, reserved transportation for the third offence, punishing the first offence by three months’, and the second by six months’ imprisonment. But the convicted person had to find sureties after his release, or else go back to hard labour for another six months if it was a first offence, or another twelve months if it was his second. Further, if three men were found in a wood and one of them carried a gun or bludgeon, all three were liable to be transported for fourteen years.[349] Althorp’s Bill of 1831 which abolished the qualifications of the Act of Charles II., gave the right to shoot to every landowner who took out a certificate, and made the sale of game legal, proposed in its original form to alter these punishments, making that for the first and second offences rather more severe (four and eight months), and that for the third, two years’ imprisonment. In Committee in the House of Commons the two years were reduced to one year on the proposal of Orator Hunt. The House of Lords, however, restored the punishments of the Act of 1828.

These were the main Acts for punishing poachers that were passed during the last phase of the ancient régime. How large a part they played in English life may be imagined from a fact mentioned by the Duke of Richmond in 1831.[350] In the three years between 1827 and 1830 one in seven of all the criminal convictions in the country were convictions under the Game Code. The number of persons so convicted was 8502, many of them being under eighteen. Some of them had been transported for life, and some for seven or fourteen years. In some years the proportion was still higher.[351] We must remember, too, what kind of judges had tried many of these men and boys. ‘There is not a worse-constituted tribunal on the face of the earth,’ said Brougham in 1828, ‘not even that of the Turkish Cadi, than that at which summary convictions on the Game Laws constantly take place; I mean a bench or a brace of sporting justices. I am far from saying that, on such subjects, they are actuated by corrupt motives; but they are undoubtedly instigated by their abhorrence of that _caput lupinum_, that _hostis humani generis_, as an Honourable Friend of mine once called him in his place, that _fera naturæ_--a poacher. From their decisions on those points, where their passions are the most likely to mislead them, no appeal in reality lies to a more calm and unprejudiced tribunal; for, unless they set out any matter illegal on the face of the conviction, you remove the record in vain.’[352]

The close relation of this great increase of crime to the general distress was universally recognised. Cobbett tells us that a gentleman in Surrey asked a young man, who was cracking stones on the roadside, how he could live upon half a crown a week. ‘I don’t live upon it,’ said he. ‘How do you live then?’ ‘Why,’ said he, ‘I _poach_: it is better to be hanged than to be starved to death.’[353] This story receives illustration after illustration in the evidence taken by Parliamentary Committees. The visiting Justices of the Prisons in Bedfordshire reported in 1827 that the great increase in commitments, and particularly the number of commitments for offences against the Game Laws, called for an inquiry. More than a third of the commitments during the last quarter had been for such offences. The Report continues:--

‘In many parishes in this county the wages given to young unmarried agricultural labourers, in the full strength and vigour of life, seldom exceed 3s. or 3s. 6d. a week, paid to them, generally, under the description of roundsmen, by the overseers out of the poor rates; and often in the immediate vicinity of the dwellings of such half-starved labourers there are abundantly-stocked preserves of game, in which, during a single night, these dissatisfied young men can obtain a rich booty by snaring hares and taking or killing pheasants ... offences which they cannot be brought to acknowledge to be any violation of private property. Detection generally leads to their imprisonment, and imprisonment introduces these youths to familiarity with criminals of other descriptions, and thus they become rapidly abandoned to unlawful pursuits and a life of crime.’[354] Mr. Orridge, Governor of the Gaol of Bury St. Edmunds, gave to the Committee on Commitments and Convictions[355] the following figures of prisoners committed to the House of Correction for certain years:--

1805, 221 1815, 387 1824, 457
1806, 192 1816, 476 1825, 439
1807, 173 1817, 430 1826, 573.

He stated that the great increase in the number of commitments began in the year 1815 with the depression of agriculture and the great dearth of employment: that men were employed on the roads at very low rates: that the commitments under the Game Laws which in 1810 were five, in 1811 four, and in 1812 two, were seventy-five in 1822, a year of great agricultural distress, sixty in 1823, sixty-one in 1824, and seventy-one in 1825. Some men were poachers from the love of sport, but the majority from distress. Mr. Pym, a magistrate in Cambridgeshire, and Sir Thomas Baring, a magistrate for Hampshire, gave similar evidence as to the cause of the increase of crime, and particularly of poaching, in these counties. Mr. Bishop, a Bow Street officer, whose business it was to mix with the poachers in public-houses and learn their secrets, told the Committee on the Game Laws in 1823 that there had not been employment for the labouring poor in most of the places he had visited. Perhaps the most graphic picture of the relation of distress to crime is given in a pamphlet, _Thoughts and Suggestions on the Present Condition of the Country_, published in 1830 by Mr. Potter Macqueen, late M.P. for Bedford.

‘In January 1829, there were ninety-six prisoners for trial in Bedford Gaol, of whom seventy-six were able-bodied men, in the prime of life, and, chiefly, of general good character, who were driven to crime by sheer want, and who would have been valuable subjects had they been placed in a situation, where, by the exercise of their health and strength, they could have earned a subsistence. There were in this number eighteen poachers, awaiting trial for the capital offence of using arms in self-defence when attacked by game-keepers; of these eighteen men, one only was not a parish pauper, and he was the agent of the London poulterers, who, passing under the apparent vocation of a rat-catcher, paid these poor creatures more in one night than they could obtain from the overseer for a week’s labour. I conversed with each of these men singly, and made minutes of their mode of life. The two first I will mention are the two brothers, the Lilleys, in custody under a charge of firing on and wounding a keeper, who endeavoured to apprehend them whilst poaching. They were two remarkably fine young men, and very respectably connected. The elder, twenty-eight years of age, married, with two small children. When I inquired how he could lend himself to such a wretched course of life, the poor fellow replied: ‘Sir, I had a pregnant wife, with one infant at her knee, and another at her breast; I was anxious to obtain work, I offered myself in all directions, but without success; if I went to a distance, I was told to go back to my parish, and when I did so, I was allowed ... What? Why, for myself, my babes, and my wife, in a condition requiring more than common support, and unable to labour, I was allowed 7s. a week for all; for which I was expected to work on the roads from light to dark, and to pay three guineas a year for the hovel which sheltered us.’ The other brother, aged twenty-two, unmarried, received 6d. a day. These men were hanged at the spring assizes. Of the others, ten were single men, their ages varying from seventeen to twenty-seven. Many had never been in gaol before, and were considered of good character. Six of them were on the roads at 6d. per day. Two could not obtain even this pittance. One had been refused relief on the ground that he had shortly previous obtained a profitable piece of job-work, and one had existed on 1s. 6d. during the fortnight before he joined the gang in question. Of five married men, two with wife and two children received 7s., two with wife and one child 6s., and one with wife and four small children 11s.’[356]

If we wish to obtain a complete picture of the social life of the time, it is not enough to study the construction of this vindictive code. We must remember that a sort of civil war was going on between the labourers and the gamekeepers. The woods in which Tom Jones fought his great fight with Thwackum and Blifil to cover the flight of Molly Seagrim now echoed on a still and moonless night with the din of a different sort of battle: the noise of gunshots and blows from bludgeons, and broken curses from men who knew that, if they were taken, they would never see the English dawn rise over their homes again: a battle which ended perhaps in the death or wounding of a keeper or poacher, and the hanging or transportation of some of the favourite Don Quixotes of the village. A witness before the Committee on the Game Laws said that the poachers preferred a quiet night. Crabbe, in the poacher poem (Book XXI. of _Tales of the Hall_) which he wrote at the suggestion of Romilly, takes what would seem to be the more probable view that poachers liked a noisy night:

‘It was a night such bold desires to move
Strong winds and wintry torrents filled the grove;
The crackling boughs that in the forest fell,
The cawing rooks, the cur’s affrighted yell;
The scenes above the wood, the floods below,
Were mix’d, and none the single sound could know;
“Loud blow the blasts,” they cried, “and call us as they blow.”’

Such an encounter is put into cold arithmetic in an official return like this[357]:--

‘An account of the nineteen persons committed to Warwick Gaol for trial at the Lent Assizes 1829 for shooting and wounding John Slinn at Combe Fields in the County of Warwick whilst endeavouring to apprehend them for destroying game in the night with the result thereof:--

Seven peasants exiled for life, nine exiled for fourteen years, and two condemned to the worst exile of all. In that village at any rate there were many homes that had reason to remember the day when the pleasures of the rich became the most sacred thing in England.

But the warfare was not conducted only by these methods. For the gentlemen of England, as for the genius who fought Michael and Gabriel in the great battle in the sixth book of _Paradise Lost_, science did not spread her light in vain. There was a certain joy of adventure in a night skirmish, and a man who saw his wife and children slowly starving, to whom one of those golden birds that was sleeping on its perch the other side of the hedge, night after night, till the day when it should please the squire to send a shot through its purple head, meant comfort and even riches for a week, was not very much afraid of trusting his life and his freedom to his quick ear, his light foot, or at the worst his powerful arm. So the game preservers invented a cold and terrible demon: they strewed their woods with spring guns, that dealt death without warning, death without the excitement of battle, death that could catch the nimblest as he slipped and scrambled through the hiding bracken. The man who fell in an affray fell fighting, his comrades by his side; it was a grim and uncomforted fate to go out slowly and alone, lying desolate in the stained bushes, beneath the unheeding sky. It is not clear when these diabolical engines, as Lord Holland called them, were first introduced, but they were evidently common by 1817, when Curwen made a passionate protest in the House of Commons, and declared, ‘Better the whole race of game was extinct than that it should owe its preservation to such cruel expedients.’[358] Fortunately for England the spring guns, though they scattered murder and wounds freely enough (Peel spoke in 1827 of ‘daily accidents and misfortunes’), did not choose their victims with so nice an eye as a Justice of the Peace, and it was often a gamekeeper or a farm servant who was suddenly tripped up by this lurking death. By 1827 this state of things had become such a scandal that Parliament intervened and passed an Act, introduced in the Lords by Lord Suffield, who had made a previous attempt in 1825, to make the setting of spring guns a misdemeanor.[359]

The Bill did not pass without considerable opposition. Tennyson, who introduced it in the Commons, declared that the feudal nobility in ancient France had never possessed a privilege comparable with this right of killing and maiming, and he said that the fact that Coke of Norfolk[360] and Lord Suffield, both large game preservers, refused to employ them showed that they were not necessary. Members of both Houses of Parliament complained bitterly of the ‘morbid sensibility’ that inspired the proposal, and some of them defended spring guns as a labour-saving machine, speaking of them with the enthusiasm that a manufacturer might bestow on the invention of an Arkwright or a Crompton. One member of the House of Commons, a Colonel French, opposed the Bill with the argument that the honest English country gentleman formed ‘the very subject and essence of the English character,’ while Lord Ellenborough opposed it in the other House on the ground that it was contrary to the principles of the English law, which gave a man protection for his property in proportion to the difficulty with which it could be defended by ordinary means.

The crime for which men were maimed or killed by these engines or torn from their homes by summary and heartless justice was, it must be remembered, no crime at all in the eyes of the great majority of their countrymen. At this time the sale of game was prohibited under stern penalties, and yet every rich man in London, from the Lord Mayor downwards, entertained his guests with game that he had bought from a poulterer. How had the poulterer bought it? There was no secret about the business. It was explained to two Select Committees, the first of the House of Commons in 1823, and the second of the House of Lords in 1828, by poulterers who lived by these transactions, and by police officers who did nothing to interfere with them. Daniel Bishop, for example, one of the chief Bow Street officers, described the arrangements to the Committee in 1823.[361]

‘Can you state to the Committee, how the Game is brought from the poachers up to London, or other market?... The poachers generally meet the coachman or guards of the mails or vans, and deliver it to them after they are out of a town, they do not deliver it in a town; then it is brought up to London, sometimes to their agents; but the coachmen and guards mostly have their friends in London where they know how to dispose of it, and they have their contracts made at so much a brace.... There is no intermediate person between the poacher and the coachman or guard that conveys it to town?... Very seldom; generally the head of the gang pays the rest of the men, and he sends off the Game.... When the game arrives in London, how is it disposed of?... They have their agents, the bookkeepers at most of the inns, the porters who go out with the carts; any persons they know may go and get what quantity they like, by sending an order a day or two before; there are great quantities come up to Leadenhall and Newgate markets.’

Nobody in London thought the worse of a poulterer for buying poached game; and nobody in the country thought any the worse of the poacher who supplied it. A witness before the Committee in 1823 said that in one village the whole of the village were poachers, ‘the constable of the village, the shoemaker and other inhabitants of the village.’ Another witness before the Lords in 1828 said that occupiers and unqualified proprietors agreed with the labourers in thinking that poaching was an innocent practice.

Those who wished to reform the Game Laws argued that if the sale of game were legalised, and if the anomalous qualifications were abolished, the poacher’s prize would become much less valuable, and the temptation would be correspondingly diminished. This view was corroborated by the evidence given to the Select Committees. But all such proposals were bitterly attacked by the great majority of game preservers. Lord Londonderry urged against this reform in 1827 ‘that it would deprive the sportsman of his highest gratification ... the pleasure of furnishing his friends with presents of game: nobody would care for a present which everybody could give’![362] Other game preservers argued that it was sport that made the English gentlemen such good officers, on which the _Edinburgh Review_ remarked: ‘The hunting which Xenophon and Cicero praise as the best discipline for forming great generals from its being war in miniature must have been very unlike pheasant shooting.’[363] Lord Deerhurst declared, when the proposal was made fourteen years earlier, that this was not the time to disgust resident gentlemen. The English aristocracy, like the French, would only consent to live in the country on their own terms. When the squires threatened to turn _émigrés_ if anybody else was allowed to kill a rabbit, or if a poacher was not put to risk of life and limb, Sydney Smith gave an answer that would have scandalised the House of Commons, ‘If gentlemen cannot breathe fresh air without injustice, let them putrefy in Cranbourne Court.’

But what about the justice of the laws against poachers? To most members of Parliament there would have been an element of paradox in such a question. From the discussions on the subject of the Game Laws a modern reader might suppose that poachers were not men of flesh and blood, but some kind of vermin. There were a few exceptions. In 1782, when Coke of Norfolk, acting at the instance of the magistrates of that county, proposed to make the Game Laws more stringent, Turner, the member for York, made a spirited reply; he ‘exclaimed against those laws as cruel and oppressive on the poor: he said it was a shame that the House should always be enacting laws for the safety of gentlemen; he wished they would make a few for the good of the poor.... For his own part, he was convinced, that if he had been a common man, he would have been a poacher, in spite of all the laws; and he was equally sure that the too great severity of the laws was the cause that the number of poachers had increased so much.’[364] Fox (29th April 1796) protested with vigour against the morality that condemned poachers without mercy, and condoned all the vices of the rich, but he, with Sheridan, Curwen, Romilly, and a few others were an infinitesimal minority.

The aristocracy had set up a code, under which a man or boy who had offended against the laws, but had done nothing for which any of his fellows imputed discredit to him, was snatched from his home, thrown into gaol with thieves and criminals, and perhaps flung to the other side of the world, leaving his family either to go upon the rates or to pick up a living by such dishonesties as they could contrive. This last penalty probably meant final separation. Mr. T. G. B. Estcourt, M.P., stated in evidence before the Select Committee on Secondary Punishments in 1831[365] that as men who had been transported were not brought back at the public expense, they scarcely ever returned,[366] that agricultural labourers specially dreaded transportation, because it meant ‘entire separation’ from ‘former associates, relations, and friends,’ and that since he and his brother magistrates in Wiltshire had taken to transporting more freely, committals had decreased. The special misery that transportation inflicted on men of this class is illustrated in Marcus Clarke’s famous novel, _For the Term of His Natural Life_. In the passage describing the barracoon on the transport ship, Clarke throws on the screen all the different types of character--forgers, housebreakers, cracksmen, footpads--penned up in that poisonous prison. ‘The poacher grimly thinking of his sick wife and children would start as the night-house ruffian clapped him on the shoulder and bade him with a curse to take good heart and be a man.’ Readers of Mr. Hudson’s character sketches of the modern Wiltshire labourer can imagine the scene. To the lad who had never been outside his own village such a society must have been unspeakably alien and terrible: a ring of callous and mocking faces, hardened, by crime and wrong and base punishment, to make bitter ridicule of all the memories of home and boyhood and innocence that were surging and breaking round his simple heart.

* * * * *

The growing brutality of the Game Laws, if it is the chief, is not the only illustration of the extent to which the pressure of poverty was driving the labourers to press upon law and order, and the kind of measures that the ruling class took to protect its property. Another illustration is the Malicious Trespass Act.

In 1820 Parliament passed an Act which provided that any person convicted before a single J.P. within four months of the act of doing any malicious injury to any building, hedge, fence, tree, wood, or underwood was to pay damage not exceeding £5, and if he was unable to pay these damages he was to be sent to hard labour in a common gaol or House of Correction for three months. The law before the passing of this Act was as it is to-day, _i.e._ the remedy lay in an action at law against the trespasser, and the trespasser under the Act of William and Mary had to pay damages. The Act of 1820 was passed without any debate that is reported in _Hansard_, but it is not unreasonable to assume that it was demanded for the protection of enclosures and game preserves.[367] This Act exempted one set of persons entirely, ‘persons engaged in hunting, and qualified persons in pursuit of game.’ These privileged gentlemen could do as much injury as they pleased.

One clause provided that every male offender under sixteen who did not pay damages, and all costs and charges and expenses forthwith, might be sent by the magistrate to hard labour in the House of Correction for six weeks. Thus a child who broke a bough from a tree by the roadside might be sent by the magistrate, who would in many cases be the owner of the tree, to the House of Correction, there to learn the ways of criminals at an age when the magistrate’s own children were about half-way through their luxurious education. This was no _brutum fulmen_. Children were sent to prison in great numbers.[368] Brougham said in 1828: ‘There was a Bill introduced by the Rt. Hon. Gentleman opposite for extending the payment of expenses of witnesses and prosecutors out of the county rates. It is not to be doubted that it has greatly increased the number of Commitments, and has been the cause of many persons being brought to trial, who ought to have been discharged by the Magistrates. The habit of committing, from this and other causes, has grievously increased everywhere of late, and especially of boys. Eighteen hundred and odd, many of them mere children, have been committed in the Warwick district during the last seven years.’[369] The Governor of the House of Correction in Coldbath Fields, giving evidence before the Committee on Secondary Punishments in 1831, said that he had under his charge a boy of ten years old who had been in prison eight times. Capper, the Superintendent of the Convict Establishment, told the same Committee that some of the boy convicts were so young that they could scarcely put on their clothes, and that they had to be dressed. Richard Potter’s diary for 1813 contains this entry: ‘Oct. 13.--I was attending to give evidence against a man. Afterwards, two boys, John and Thomas Clough, aged 12 and 10 years, were tried and found guilty of stealing some Irish linen out of Joseph Thorley’s warehouse during the dinner hour. The Chairman sentenced them to seven years’ transportation. On its being pronounced, the Mother of those unfortunate boys came to the Bar to her children, and with them was in great agony, imploring mercy of the Bench. With difficulty the children were removed. The scene was so horrifying I could remain no longer in court.’[370] Parliament put these tremendous weapons into the hands of men who believed in using them, who administered the law on the principle by which Sir William Dyott regulated his conduct as a magistrate, that ‘nothing but the terror of human suffering can avail to prevent crime.’

The class that had, in Goldsmith’s words, hung round ‘our paltriest possessions with gibbetts’ never doubted its power to do full justice to the helpless creatures who tumbled into the net of the law. Until 1836 a man accused of a felony was not allowed to employ counsel to make his defence in the Court. His counsel (if he could afford to have one) could examine and cross-examine witnesses, and that was all; the prisoner, whatever his condition of mind, or his condition of body, had to answer the speech of the prosecuting counsel himself. In nine cases out of ten he was quite an unlearned man; he was swept into the glare of the Court blinking from long months of imprisonment in dark cells; the case against him was woven into a complete and perfect story by the skilled fingers of a lawyer, and it was left to this rude and illiterate man, by the aid of his own memory and his own imagination, his life on the razor’s edge, his mind bewildered by his strange and terrible surroundings, to pick that story to pieces, to expose what was mere and doubtful inference, to put a different complexion on a long and tangled set of events, to show how a turn here or a turn there in the narrative would change black into white and apparent guilt into manifest innocence. Sydney Smith, whose opinions on the importance of giving the poor a fair trial were as enlightened as his opinions on their proper treatment in prison were backward, has described the scene.

‘It is a most affecting moment in a Court of Justice, when the evidence has all been heard, and the Judge asks the prisoner what he has to say in his defence. The prisoner who has (by great exertions, perhaps of his friends) saved up money enough to procure Counsel, says to the Judge “that he leaves his defence to his Counsel.” We have often blushed for English humanity to hear the reply. “Your Counsel cannot speak for you, you must speak for yourself”; and this is the reply given to a poor girl of eighteen--to a foreigner--to a deaf man--to a stammerer--to the sick--to the feeble--to the old--to the most abject and ignorant of human beings!... How often have we seen a poor wretch, struggling against the agonies of his spirit, and the rudeness of his conceptions, and his awe of better-dressed men and better-taught men, and the shame which the accusation has brought upon his head, and the sight of his parents and children gazing at him in the Court, for the last time perhaps, and after a long absence!’[371]

Brougham said in the House of Commons that there was no man who visited the Criminal Courts who did not see the fearful odds against the prisoner. This anomaly was peculiar to England, and in England it was peculiar to cases of felony. Men tried for misdemeanours, or for treason, or before the House of Lords could answer by the mouth of counsel. It was only in those cases where the prisoners were almost always poor and uneducated men and women, as Lord Althorp pointed out in an admirable speech in the House of Commons, that the accused was left to shift for himself. Twice, in 1824 and in 1826, the House of Commons refused leave to bring in a Bill to redress this flagrant injustice, encouraged in that refusal not only by Canning, but, what is much more surprising, by Peel.

The favourite argument against this reform, taking precedence of the arguments that to allow persons the aid of counsel in putting their statement of fact would make justice slower, more expensive, and more theatrical, was the contention that the judge did, in point of fact, represent the interest of the prisoner: a confused plea which it did not require any very highly developed gift of penetration to dissect. But how far, in point of fact, were the judges able to enter into the poor prisoner’s mind? They had the power of sentencing to death for hundreds of trivial offences. It was the custom to pass the brutal sentence which the law allowed to be inflicted for felonies, and then to commute it in all except a few cases. By what considerations did judges decide when to be severe? Lord Ellenborough told Lauderdale that he had left a man to be hanged at the Worcester Assizes because he lolled out his tongue and pretended to be an idiot, on which Lauderdale asked the Chief Justice what law there was to punish that particular offence with death. We learn from Romilly’s _Memoirs_[372] that one judge left three men to be hanged for thefts at the Maidstone Assizes because none of them could bring a witness to his character.

The same disposition to trust to the discretion of the judge, which Camden described as the law of tyrants, explains the vitality of the system of prescribing death as the punishment for hundreds of paltry offences. During the last fifty years the energy of Parliament in passing Enclosure Acts had been only rivalled by its energy in creating capital offences. The result was a penal code which had been condemned by almost every Englishman of repute of the most various opinions, from Blackstone, Johnson, and Goldsmith to Burke and Bentham. This system made the poor man the prey of his rich neighbours. The most furious punishments were held _in terrorem_ over the heads of prisoners, and the wretched man who was caught in the net was exposed to all the animosities that he might have provoked in his ordinary life. Dr. Parr put this point writing to Romilly in 1811.

‘There is, indeed, one consideration in the case of bad men which ought to have a greater weight than it usually has in the minds of the Judges. Dislike from party, quarrels with servants or neighbours, offence justly or unjustly taken in a quarrel, jealousy about game, and twenty other matters of the same sort, frequently induce men to wish to get rid of a convicted person: and well does it behove every Judge to be sure that the person who recommends the execution of the sentence is a man of veracity, of sense, of impartiality and kindness of nature in the habitual character of his mind. I remember hearing from Sergeant Whitaker that, while he was trying a man for a capital offence at Norwich, a person brought him a message from the late Lord Suffield, “that the prisoner was a good-for-nothing fellow, and he hoped the Judge would look to him”; and the Sergeant kindled with indignation, and exclaimed in the hearing of the Court, “Zounds! would Sir Harbord Harbord have me condemn the man before I have tried him?” What Sir Harbord did during the trial, many squires and justices of the peace, upon other occasions, do after it; and were I a Judge, I should listen with great caution to all unfavourable representations. The rich, the proud, the irascible, and the vindictive are very unfit to estimate the value of life to their inferiors.’[373]

We can see how the squires and the justices would close in round a man of whom they wanted, with the best intentions in the world, to rid their parish, woods, and warrens, when the punishment he was to receive turned on his reputation as it was estimated by the gentlemen of his neighbourhood. Was Sir Harbord Harbord very far removed from the state of mind described in the Sixth Satire of Juvenal?

‘“Pone crucem servo.” “Meruit quo crimine servus
Supplicium? quis testis adest? quis detulit? Audi:
Nulla unquam de morte hominis cunctatio longa est.”
“O demens, ita servus homo est? nil fecerit, esto:
Hoc volo, sic jubeo, sit pro ratione voluntas.”’

And Sir Harbord Harbord had in hundreds of cases what he had not in this case, the power to wreak his anger on ‘a good-for-nothing fellow.’

When Romilly entered on his noble crusade and tried very cautiously to persuade Parliament to repeal the death penalty in cases in which it was rarely carried out, he found the chief obstacle in his way was the fear that became common among the governing class at this time, the fear that existing methods of punishment were ceasing to be deterrent. In 1810 he carried his Bill, for abolishing this penalty for the crime of stealing privately to the amount of five shillings in a shop, through the House of Commons, and the Bill was introduced in the House of Lords by Lord Holland. There it was rejected by twenty-one to eleven, the majority including the Archbishop of Canterbury and six other bishops.[374] The chief speeches against the Bill were made by Eldon and Ellenborough. Ellenborough argued that transportation was regarded, and justly regarded, by those who violated the law as ‘a summer airing by an easy migration to a milder climate.’

The nightmare that punishment was growing gentle and attractive to the poor came to haunt the mind of the governing class. It was founded on the belief that as human wretchedness was increasing, there was a sort of law of Malthus, by which human endurance tended to outgrow the resources of repression. The agricultural labourers were sinking into such a deplorable plight that some of them found it a relief to be committed to the House of Correction, where, at least, they obtained food and employment, and the magistrates began to fear in consequence that ordinary punishments could no longer be regarded as deterrent, and to reason that some condition had yet to be discovered which would be more miserable than the general existence of the poor. The justices who punished Wiltshire poachers found such an El Dorado of unhappiness in transportation. But disturbing rumours came to the ears of the authorities that transportation was not thought a very terrible punishment after all, and the Government sent out to Sir George Arthur, the Governor of Van Diemen’s Land, certain complaints of this kind. The answer which the Governor returned is published with the Report of the Committee on Secondary Punishments, and the complete correspondence forms a very remarkable set of Parliamentary Papers. The Governor pointed out that these complaints, which made such an impression on Lord Melbourne, came from employers in Australia, who wanted to have greater control over their servants. Arthur was no sentimentalist; his sympathies had been drilled in two hard schools, the army and the government of prisoners; his account of his own methods shows that in describing the life of a convict he was in no danger of falling into the exaggerations or the rhetoric of pity. In these letters he made it very clear that nobody who knew what transportation meant could ever make the mistake of thinking it a light punishment. The ordinary convict was assigned to a settler. ‘Deprived of liberty, exposed to all the caprice of the family to whose service he may happen to be assigned, and subject to the most summary laws, the condition of a convict in no respect differs from that of a slave, except that his master cannot apply corporal punishment by his own hands or those of his overseer, and has a property in him for a limited period only.’ Further, ‘idleness and insolence of expression, or even of looks, anything betraying the insurgent spirit, subjects him to the chain-gang, or the triangle, or to hard labour on the roads.’[375] We can imagine what the life of an ordinary convict might become. In earlier days every convict who went out began as an assigned servant, and it was only for misconduct in the colony or on the way thither that he was sent to a Penal Settlement, but the growing alarm of the ruling class on the subject of punishment led to a demand for more drastic sentences, and shortly after the close of our period Lord Melbourne introduced a new system, under which convicts might be sentenced from home to the Penal Settlement, and any judge who thought badly of a prisoner might add this hideous punishment to transportation.

The life of these Settlements has been described in one of the most vivid and terrible books ever written. Nobody can read Marcus Clarke’s great novel without feeling that the methods of barbarism had done their worst and most devilish in Macquarie Harbour and Port Arthur. The lot of the prisoners in _Resurrection_ is by comparison a paradise. Not a single feature that can revolt and stupefy the imagination is wanting to the picture. Children of ten committing suicide, men murdering each other by compact as an escape from a hell they could no longer bear, prisoners receiving a death sentence with ecstasies of delight, punishments inflicted that are indistinguishable from torture, men stealing into the parched bush in groups, in the horrible hope that one or two of them might make their way to freedom by devouring their comrades--an atmosphere in which the last faint glimmer of self-respect and human feeling was extinguished by incessant and degrading cruelty. Few books have been written in any language more terrible to read. Yet not a single incident or feature is imaginary: the whole picture is drawn from the cold facts of the official reports.[376] And this system was not the invention of some Nero or Caligula; it was the system imposed by men of gentle and refined manners, who talked to each other in Virgil and Lucan of liberty and justice, who would have died without a murmur to save a French princess from an hour’s pain or shame, who put down the abominations of the Slave Trade, and allowed Clive and Warren Hastings to be indicted at the bar of public opinion as monsters of inhumanity; and it was imposed by them from the belief that as the poor were becoming poorer, only a system of punishment that was becoming more brutal could deter them from crime.

If we want to understand how completely all their natural feelings were lost in this absorbing fear, we must turn to the picture given by an observer who was outside their world; an observer who could enter into the misery of the punished, and could describe what transportation meant to boys of nine and ten, exposed to the most brutal appetites of savage men; to chained convicts, packed for the night in boxes so narrow that they could only lie on one side; to crushed and broken men, whose only prayer it was to die. From him we learn how these scenes and surroundings impressed a mind that could look upon a convict settlement as a society of living men and boys, and not merely as the Cloaca Maxima of property and order.[377]

FOOTNOTES:

[310] _Poor Law Report_, 1834, p. 60.

[311] The big landlord under this method shared the privilege of paying the labourer’s wages with the small farmer.

[312] _Tribune_, vol. ii. p. 317.

[313] _Ibid._, p. 339.

[314] Poor Law Commission Report of 1834, p. 126.

[315] See Curtler’s _Short History of Agriculture_, p. 249.

[316] Smart, _Economic Annals_, p. 36.

[317] ‘It was during the war that the cottagers of England were chiefly deprived of the little pieces of land and garden, and made solely dependent for subsistence on the wages of their daily labour, or the poor rates. Land, and the produce of it, had become so valuable, that the labourer was envied the occupation of the smallest piece of ground which he possessed: and even “the bare-worn common” was denied.’--_Kentish Chronicle_, December 14, 1830.

[318] Curtler, p. 243.

[319] _Agricultural State of the Kingdom_, Board of Agriculture, 1816, p. 7.

[320] _Ibid._, pp. 250-1.

[321] P. 144.

[322] C. C. Western (1767-1844); whig M.P., 1790-1832; chief representative of agricultural interests; made peer in 1833.

[323] _Annual Register_, 1816, Chron., p. 67.

[324] The disturbances at Brandon ceased immediately on the concession of the demands of the rioters; flour was reduced to 2s. 6d. a stone, and wages were raised for two weeks to 2s. a head. The rioters were contented, and peace was restored.--_Times_, May 23, 1816.

[325] _Annual Register_, 1816, Chron., p. 67.

[326] _Cambridge Chronicle_, June 28, 1816.

[327] _Times_, June 26. A curious irony has placed side by side with the account in the _Annual Register_ of the execution of the five men who were hung for their share in this spasm of starvation and despair, the report of a meeting, with the inevitable Wilberforce in the chair, for raising a subscription for rebuilding the Protestant Church at Copenhagen, which had been destroyed by the British Fleet at the bombardment of Copenhagen in 1807.

[328] _Agricultural State of the Kingdom_, p. 13.

[329] 59 George III. c. 50.

[330] See _Annual Register_, 1819, p. 320.

[331] Those assessed at £100 were to have two votes, those at £150 three votes, and those at £400 four votes. Whitbread did not propose to copy the provision of Gilbert’s Act, which withdrew all voting power in vestries in parishes that adopted that Act from persons assessed at less than £5.

[332] _Political Register_, August 29, 1807, p. 329.

[333] Letter to Samuel Whitbread, M.P., on his proposed Bill for the Amendment of the Poor Laws, 1807.

[334] 58 George III. c. 69.

[335] 59 George III. c. 12.

[336] H. O. Papers, Municipal and Provincial.

[337] Of course the system was only one of the causes of this difference in wages.

[338] P. 99.

[339] See _Agricultural State of the Kingdom_, Board of Agriculture, p. 231, and Cobbett, _Political Register_, October 5, 1816.

[340] Pp. 21 and 23.

[341] The table is given in the Report of the Committee on the Poor Laws, 1828.

[342] Cobbett, _Political Register_, September 21, 1822. Cobbett wrote one of his liveliest articles on this scale, setting out the number of livings held by the five parsons, and various circumstances connected with their families.

[343] _Ibid._, September 9, 1826.

[344] _Rural Rides_, p. 17.

[345] _Ibid._, p. 609.

[346] The farmers were usually sympathetic to poaching as a habit, but it was not so much from a perception of its economic tendencies, as from a general resentment against the Game Laws.

[347] See Cobbett; _Letters to Peel_; _Political Register_; and Dr. Hunt’s evidence before the Select Committee on Criminal Commitments and Convictions, 1827.

[348] A manifesto was published in a Bath paper in reply to this Act; it is quoted by Sydney Smith, _Essays_, p. 263: ‘TAKE NOTICE.--We have lately heard and seen that there is an act passed, and whatever poacher is caught destroying the game is to be transported for seven years.--_This is English Liberty!_

‘Now we do swear to each other that the first of our company that this law is inflicted on, that there shall not be one gentleman’s seat in our country escape the rage of fire. The first that impeaches shall be shot. We have sworn not to impeach. You may think it a threat, but they will find it a reality. The Game Laws were too severe before. The Lord of all men sent these animals for the peasants as well as for the prince. God will not let his people be oppressed. He will assist us in our undertaking, and we will execute it with caution.’

[349] The Archbishop of Canterbury prosecuted a man under this Act in January 1831, for rescuing a poacher from a gamekeeper without violence, on the ground that he thought it his duty to enforce the provisions of the Act.

[350] House of Lords, September 19, 1831.

[351] A magistrate wrote to Sir R. Peel in 1827 to say that many magistrates sent in very imperfect returns of convictions, and that the true number far exceeded the records.--Webb, _Parish and County_, p. 598 note.

[352] _Brougham Speeches_, vol. ii. p. 373.

[353] _Political Register_, March 29, 1823, vol. xxiv. p. 796.

[354] Select Committee on Criminal Commitments and Convictions, 1827, p. 30.

[355] _Ibid._, p. 39.

[356] Quoted in _Times_, December 18, 1830.

[357] Return of Convictions under the Game Laws from 1827 to 1830. Ordered by the House of Commons to be printed, February 14, 1831, p. 4.

[358] _Hansard_, June 9, 1817.

[359] Scotland was exempted from the operation of this statute, for whilst the Bill was going through Parliament, a case raised in a Scottish Court ended in a unanimous decision by the six Judges of the High Court of Justiciary that killing by a spring gun was murder. Hence the milder provisions of this Act were not required. See _Annual Register_, 1827, p. 185, and Chron., p. 116.

[360] That Coke of Norfolk did not err on the side of mercy towards poachers is clear from his record. His biographer (Mrs. Stirling) states that one of his first efforts in Parliament was to introduce a Bill to punish night poaching.

[361] P. 29 ff.

[362] _Annual Register_, 1827, p. 184.

[363] _Edinburgh Review_, December 1831.

[364] _Parliamentary Register_, February 25, 1782.

[365] P. 42.

[366] ‘Speaking now of country and agricultural parishes, I do not know above one instance in all my experience.’

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The village labourer, 1760-1832Chapter VIII: After Speenhamland (2)

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