All my Georgian-era mystery stories share one element: the fact that England at the time had no system of public prosecution for crimes. Not only were there no police to investigate criminal acts, there were no official prosecutors to bring any subsequent case to court. Prosecution was much like a civil case today: it was entirely up to the victim, his or her friends or family, or some other interested party to collect evidence, find witnesses and file charges with the local magistrate. If that official decided there was a case to be answered, one that needed to be handled by a higher court than his own, the same private person or persons would be expected to present the case to the grand jury, and, if the grand jury found a true bill, provide evidence and witnesses for the trial. At every stage, there were fees to be paid, expensive lawyers to be hired and a host of other expenses as well.
Not surprisingly, many people were reluctant to take on this financial and organisational burden with the only reward being the possible sight of justice done. In a civil case, success usually means an award of damages. In a criminal case, the outcome is punishment for the criminal and nothing much else. Witnesses might be offered a reward if a conviction was obtained, but this usually made juries less willing to accept what they said as the unvarnished truth, so the practice gradually fell out of favour.
Covering the Costs
In 1752, provision was made to reimburse poor prosecutors for the costs of a prosecution, but it only applied to successful cases. Even then, the costs of prosecution were not always reimbursed in full. The system might lessen the obvious disincentives to bringing a prosecution, but it did not take them away. Only in 1778 was it made possible to offer reimbursement for an unsuccessful prosecution.
Tradesmen and shopkeepers in particular had every reason to want thieves apprehended and punished. Though a single prosecution might cost the injured party far more than the value of goods stolen, the deterrent effect on others could prove worth it.
One solution to the cost issue for prosecutions was to join one of the local prosecution associations. These associations brought together a varying number of members, living in the same area, with a shared interest in seeing prosecutions brought. Some were even targeted on specific crimes, such as horse theft or arson.
The 1799 deed of association for a Birmingham association for the prosecution of felons stated that association’s raison d’être clearly:
‘…many Felonies are committed by persons who escape punishment, by reason of the great expences [sic] attending the apprehending and prosecuting them to conviction, and others are thereby encouraged to commit felonies.’
Rather like taking out an insurance policy, the association collected a set fee from each member on joining, and sometimes thereafter to top up available monies. The money went into a common fund, which was generally used to pay the cost of prosecuting crimes committed against members, but might also serve to offer rewards to informers or pay for guards on especially vulnerable properties. It could even serve to encourage prosecutions by non-members too poor to pay the association’s dues. This was more likely an attempt to maximise the effect of deterrence than philanthropy.
However, there seems also to have been a policy of “no payment, no coverage” and a ban on paying only after a crime had been committed:
‘That no person can receive the Benefit of this Association, unless he or she shall be (bonafide) a subscriber, at the time any Burglary, Felony, or Fraud, may be committed on him, or his effects; excepting he or she being a Labouring person, or not in a situation to pay the expense of a prosecution; this is to be decided upon by the Committee’ (The Association of the Parish of Bolton Percy for the Prosecution of Felons, Cheats and for the defraying of all expenses of Advertisement, Handbills etc., 1825–1890,).
The actions of the association would also be publicised where possible. By listing the names of members in the local newspaper, criminals were put on warning that thefts from those persons would always be subject to investigation and, wherever possible, rigorous prosecution.
This notice appeared in The Norfolk Chronicle for 30th November, 1776:
Norfolk, Nov. 14, 1776. At the Annual Meeting held this Day at the Crown in Watton, in the said County, by the Association for the apprehending and convicting of HORSE- STEALERS, &c. in the Hundred of Weyland, and adjacent Hundreds, Mr. W. Dack of Carbrooke, in the said County, was appointed Treasurer for the Year ensuing; and all former Rules and Orders were confirmed, and the Reward of Ten Guineas ordered to be paid upon Conviction of any Person, who should hereafter steal any Horse, Mare or Gelding, belonging to any of the said Society; and that such Reward should be offered as to the Treasurer should seem meet, for the apprehending and convicting of any Person or Persons, who should hereafter commit any Robbery upon the Persons or Properties of any of the Subscribers to the said Association, to be paid with the Expense of such Prosecutions, upon Conviction of such Offender.
There then follows a list of no fewer than 147 subscribers to the association, listed by the hundreds in which they lived. The notice ends as follows:
N. B. Such of the Subscribers as were absent at this Meeting are, according to a former Order of the Society, to pay their 2s. 6d. each to the new Treasurer, within two Months from the Date hereof, towards augmenting the Fund of the said Society, or they will be excluded all benefit of the same’ W. DACK, of Carbrooke, Treasurer
Thousands of these prosecution associations were established in the 18th and early 19th century throughout the country. This was more than a simple insurance policy against the risk of unexpected losses. By joining such an association, each potential victim committed himself to prosecute, free from the obvious financial worries that might otherwise intervene. The prosecution costs were now shared by all, as were the hoped-for benefits of deterrence against future crimes.
- This was the period of the laws nicknamed ‘The Bloody Code’, under which a criminal could be executed or transported for a single theft of very modest value. People of the time believed deterrence was the only way to keep crime at a bearable level. It would not work unless the majority of cases where the culprit could be identified led to prosecution and punishment. ↩
- A hundred was an administrative area within a county. ↩
- Clearly an annual subscription, amounting to perhaps £25 today. ↩