Social and legal historians have long been attracted to well-publicized court cases as primary sources for illustrating the feelings and attitudes of particular historical settings. Such cases are frequently extensively documented, and the detail of their reporting often seems to provide unique insight into the thoughts, attitudes, and even the speech of a past not otherwise accessible. Use of the “famous case” as an image of its time is tempting and can be rewarding if its limitations are recognized. By definition, the “famous case” involves extraordinary events and/or extraordinary personages. Cases of this nature cannot therefore be taken as representative of all that they portray. They are invariably political statements of their time and, as such, reports of them must be assessed in terms of both their bias and their provenance. The State Trials series, for example, which covers British trials of an explicitly political concern, is often cited, although the veracity of many of its reports has long been questioned. Cases of less overtly political nature have often aroused contemporary passion that yields confusing and contradictory information in the sources documenting them.
These considerations apart, a major difficulty with using such cases lies with the necessity for separating urgent political issues of the time from broader social concerns. If such cases are used in isolation from other forms of legal data, separations of this nature are difficult, if not impossible, to effect. To know how typical a viewpoint expressed in this form is, one must have access to parallel sources that may provide less detail on the points of interest, but at least allow these to be examined in a more characteristic setting.
The pitfalls of failing to combine study of the unusual with that of the routine are numerous. Of studies that have taken the “famous case” approach to gender-related concerns, there are a number of examples in point. Pirie and Woods v. Cumming-Gordon was a Scottish libel case of protracted length, initiated in 1810. The substance of the case involved the loss of business sustained by the coproprietors of a girls’ school after accusations of lesbianism against them by an influential patron. Lillian Faderman’s analysis of it purports to document a male world view antagonistic to female sexuality in general, and lesbianism in particular. In fact, the study mainly documents the lack of male willingness even to recognize lesbianism as a phenomenon. It was discussed extensively in the Pirie and Woods case, but this was only because the issue was forced on the courts. Homosexuality between women was legal in Britain at a time when male homosexuals were being executed. The many reported instances of women assuming male roles were generally regarded in a nonsexual light. Lesbians, if they were not socially approved, were certainly not persecuted, and their very existence was barely even recognized.
My point is not that the materials of “famous cases” should be avoided. It is rather that they be used with caution, and in conjunction with archival products of run-of-the-mill experiences of the time. The position taken here, in fact, is that such cases do have a distinctive place in the materials of historical research, but not necessarily as mirrors of the social and legal concerns they explicitly address. “Famous cases” were often important public events of their times. At one level, they informed people about the law and the nature of its prosecution, although the understanding they gave was not always an accurate reflection of society’s usual response to the crime addressed. At another, the best-known of them often crystallized social and political agendas but marginally related to the offense prosecuted.
It is as influences on, and constructs of, popular thought that they should now be considered. In the analysis that follows, a well-known case of rape is discussed, but as political theater of its time, rather than as an expression of the true essence of law. The important legal implications this case does have are consequences, not of its place in law, but of its influence on popular beliefs about the law and about the nature of justice.
Before addressing the facts and circumstances of this case, some attention must be paid to the provenance of the sources documenting it. The principal among these are cited in the Appendix. Most are of the “criminal biography” genre and some are offshoots of the Old Bailey Proceedings, which began regular publication in 1729 and had quasi-official status long before its approval as an official record of the court. These sources have generally been accepted by experts in the field as accurate, though not always complete. In attempting to reconstruct the salient facts of this case, and especially those related to legal procedure, I have relied most heavily on those three sources that focus upon the trial. A check on the accuracy of these was to some extent provided by contemporary reports in newspapers, and by the other sources cited in the Appendix. No significant contradictions emerged between these sources, except in accounts of some of the wilder aspects of the accused’s previous history. One problem that did emerge was that different accounts of the trial produced different levels of detail on various of its aspects, but this was not insurmountable.
The trial of Colonel Francis Charteris for the capital crime of raping Ann Bond took place in the Old Bailey in 1730, and was the media event of the decade, and one of the most famous criminal cases of the century. As a consequence of the publicity surrounding it, the image of Charteris became embedded in popular understanding as the very epitome of the sexual beast; that variety of rake who specializes in victimization of the helpless and achieves gratification through violence and the abuse of power.
Charteris’ notoriety long survived his death, from natural causes, in 1732. In his own age he was well known. Alexander Pope alluded to him in scathing terms in various of his works. His Moral Essay III, written in 1733, addresses the misuse of riches. His “Epistle to Bathurst” cites three well-known rich miscreants of the day, and suggests that possession of money shows: “No Grace of Heav’n or token of th’Elect; Giv’n to the Fool, the Mad, the Vain, the Evil, To Ward, to Waters, Chartres, and the Devil.” Hogarth reportedly used both the colonel and his main procuress (Moll Harvey or “Mother Needham”) as models for the rake and the bawd in the first plate of “The Harlot’s Progress,” published in 1732.Hogarth’s prints were immensely popular, and the significance of the characters portrayed was appreciated. John Gay was sarcastic at Charteris’ expense in the same year. Both Pope and Swift frequently used Charteris as the exemplar of venality and excess among the privileged. His behavior was discussed critically at Court, and even by the King and Queen. Lord Chesterfield, writing many years after Charteris’ death, called him: “the most notorious blasted rascal in the world.” Such observations are especially telling as they came from those with a strong commitment to privilege and no noticeable interest in the protection of the rights of the lower classes.
Although their opinions are, of course, less well documented, it is clear that the lower orders themselves developed a strong aversion to Charteris. He was the unwilling object of attention of the London mob on a number of occasions following his release from prison, and was at least once attacked and beaten. Following his death on his Scottish estates in 1732, local people attending the funeral offered a spirited demonstration of their dislike of him. At least one popular ballad and three plays hostile to the defendant were written about the case, and two of the plays were certainly staged in London in the early 1730s. Charteris was vilified across the social spectrum. His image as the consummate debauchee was the same for every social class.
The reasons for immediate public interest in this case are fairly obvious, although not perhaps sufficient in themselves to explain the passion and persistence of popular feelings about it. The villain of the piece was a man of immense wealth, and very dubious reputation. His victim was a poor servant-girl portrayed as a model of virtue and propriety. Charteris’ conviction was a minor triumph for the criminal justice system of a strongly class-oriented society. It appeared to demonstrate that the law could hold the rich accountable for unseemly actions and could protect the rights of the virtuous poor. This image of legal impartiality was, however, largely undercut by Charteris’ eventual pardon by a system otherwise intolerant of convicted rapists.
An appreciation of the strength of this outcome of the case can only be obtained from a consideration of the nature of the encounter between Francis Charteris and Ann Bond, and its subsequent examination in a court of law. The account below is a critical summary of information provided in the primary sources listed in the Appendix, and in contemporary newspapers and journals.
In the last week of October, 1729, Ann Bond was engaged, through an intermediary who turned out to be a regular procuress for Charteris, as a servant to one “Colonel Harvey.” According to Bond’s testimony, she was approached by the intermediary, who appeared to have singled her out to offer her the post. She began work and her employer promptly began to make advances toward her. These were accompanied by offers of money, but no violence. After three days of this, Bond discovered that “Harvey” was none other than the infamous Colonel Charteris, who was then well known for a long career that had encompassed the routine entrapment and rape of servants. Charteris had even regularized this practice through the establishment of contacts at the many employment agencies for servants in the Metropolis.
Following her discovery, Bond immediately asked to leave the house. Permission was refused and the other servants detailed to prevent her escape. The following morning, she was confronted by Charteris who attacked and raped her. There were no witnesses to the event, and other servants in an adjoining room later testified to hearing no outcry or commotion. Bond then told Charteris of her intention to prosecute him. His response was to whip her and order his servants to take her belongings and throw her out of doors, alleging that she had stolen money from him.
Ann Bond sought help from Mary Parsons, a “gentlewoman” who was probably her former employer. Mrs. Parsons engaged an attorney, Mr. Bliss (or Biss) and the three repaired to the court at Hicks’s Hall to swear out a complaint. At this crucial point in the story, things are rather unclear. The initial complaint was certainly not for the capital crime of rape, but for the indictable misdemeanor of “assault with intent to commit rape.” It may have been sworn in association with, or as a prelude to, an attempt to obtain monetary damages from Charteris in a civil suit. Whatever the case, the misdemeanor indictment was upheld by a Middlesex grand jury, and the colonel found himself in the embarrassing, but not completely disastrous, situation of facing what was then a relatively minor criminal charge.
By this time, the colonel was in Brussels. Although he was then beyond the reach of English law, it is hard to believe that Charteris had made this move because of the criminal case against him. A conviction for attempted rape at this time usually carried the punishment of a fine (unless the victim was a child, when the offender might also have to spend an unpleasant hour in the pillory), although it could also involve a short term of imprisonment. Moreover, Charteris was also engaged in an unrelated suit involving a large sum of money, and the several trips to Brussels he made around this time were probably connected to this civil case. In any event, the colonel was certainly back in London on 27 February 1730 to face a criminal trial in the Old Bailey. Things had, however, changed dramatically since the initial indictment had been brought. The grand jury, apparently at the instigation of the victim’s counsel, had reexamined the case and, as a result, brought a second indictment—this time for the capital crime of rape.
Most contemporary accounts of the case suggest or imply that Charter-is was lured back from exile by his opponents, whose strategy encouraged the mistaken belief that the criminal charge was noncapital. This is extremely unlikely. Charteris’ December 1729 trip to Belgium appears to have begun the day after the capital indictment was handed down. The probability is that Charteris felt confident of being able to “make up” the case through a substantial payment to the prosecutrix. He had done this a number of times before, under similar circumstances. Moreover, the technique was a standard one at the time, and one which should be regarded as a traditional means of offering reparation for an injury, and not necessarily as a corrupt practice (see below).
Charteris undoubtedly tried this old standby and was reportedly prepared to pay out the huge sum of £300. These efforts came to nothing, and Charteris was tried and convicted of rape in the Old Bailey on February 27th. The trial itself was sensational. His defense took the usual tack in such cases of attempting to impugn the virtue and motives of the complainant, and she was specifically accused of compliance, prostitution, theft, and extortion.
This strategy rebounded on Charteris. His many witnesses were shown to be suspect, and at least one a perjurer, and written documents offered in evidence by the defense were shown to be forged. At a time when character witnesses for both prosecutor and defendant were considered of great importance in criminal trials, Charteris brought none. His reputation for sexual violence stood unchallenged. In contrast, Ann Bond’s character was vouched for as impeccable by a number of former employers. Feeling against the conduct of the defense was clear during the hearing, and Charteris, for all his fabricated evidence, was reduced to the humiliating expedient of claiming Bond’s consent and at the same time trying to introduce evidence of his own physical impotence. None of these tactics worked. The jury took fifteen minutes to find the defendant guilty, and Charteris was sentenced to death.
The story did not end here. Although Charteris had no vocal partisans, either before his trial or after it, he was obviously a man of power. Efforts to reprieve him were mobilized immediately. Depositions attesting to the lax morality of Ann Bond were taken for presentation to the Privy Council, and these were believed by many, including influential people not at all sympathetic to the defendant. Charteris’ wife was a major force in the campaign. His son-in-law, the Earl of Wemyss, came down from Scotland to petition the Crown on his behalf. Ann Bond herself was drawn into this effort. Her meeting with “several Persons of Distinction and Eminent Lawyers” on April 6th was closely followed by a pardon for Charteris, conditional, it was thought, on payment of a large, lifetime annuity to his victim.
Charteris escaped with his life and the bulk of his fortune. As a convicted felon, all his property could have been held “atteint,” or forfeit to the Crown. The fact of his pardon did not necessarily bring with it the return of his property. Charteris successfully petitioned the Crown for the return of his estates, or at least most of them, the following August. Payments needed to effect this reprieve and the return of his property must have been massive. One series of three payments to the Westminster sheriffs alone totaled £8, 300. Extralegal payments must also have been very large. His campaign for reprieve was supposedly distinguished by wholesale bribery, and one account of the forfeiture of estates refers sarcastically to a handsome gift given by Charteris to Sir Robert Walpole, the Prime Minister: “Horse furniture of green Velvet, curiously embroidered with Gold.” 20
For all this, Charteris remained a very rich man. After his death, shunned and somewhat repentant, obituaries emphasized the size of his estate, left largely to his grandson, the child of his son-in-law and advocate, the Earl of Wemyss. Duncan Forbes, the lawyer who masterminded his appeal for a pardon, was also recognized handsomely in the will.
Others profited from the Charteris case. These included Messrs. Bliss and Kettelby, attorneys for the prosecution, and Mr. Strange, counsel for the defense, and the many false witnesses suborned on Charteris’ behalf, as well as the many officials and politicians thought to have been bribed in his applications for pardon and restoration of estates. The case became a source of income for the publishers of the many chapbooks addressing the case, and undoubtedly stimulated the sales figures of newspapers.
Ann Bond, despite her probable acquisition of a handsome pension, may ultimately have profited less than she expected. Shortly after the events described here, this servant-girl moved upward on the social scale through her marriage to an army officer of field rank. This may not have helped her in the long run; the gentleman, a Major Smith, was arrested in September 1730 for debts totaling more than £l, 600.
The obvious beneficiary of the fact of Charteris’ conviction was the state, and its benefits went far beyond the possibly substantial portions of the convict’s property retained by the government even after his apparent status of atteinted felon was lifted. As Douglas Hay has observed in his classic essay on the subject, the criminal justice system of eighteenth-century England was the principal mechanism through which the state could express dominant values and discourage breaches of them. Because the machinery of justice was limited and inefficient, compliance depended to a great extent on public acceptance of the substance it defended. It followed that the conception of justice it represented had to be perceived as including real elements of fairness and equity, as well as support for existing power relations and the status quo. This was a notion sufficiently recognized at the time. As one eighteenth-century judge observed, “the hanging (of) one rogue in ruffles was of more public benefit than hanging a hundred in brogues.”
The capital conviction of the odd aristocrat for ordinary criminal conduct (rather than for treasonous activity) arguably went to increase the credibility of the state. Rare cases such as that of Charteris, or of Lord Ferrers, convicted in 1760 for the murder of a servant, accordingly did the state’s reputation for fairness no harm at all. Neither of these cases was an unqualified success in this regard. The pathetic Ferrers was executed, but he was almost certainly insane at the time of his crime and after it. Charteris, as we have seen, was convicted but never executed.
Nonetheless, Charteris was a rich man who was punished for his acts, although by no means to the full extent of the law. He was publicly humiliated and lost money and prestige. His death was a likely consequence of his imprisonment in Newgate for several months after his trial. His conviction made possible the sarcastic comment: “What’s now become of the Mob’s Maxim That none but Fools and Beggars are punish’d for Offences, and that Gold will extract the Sting from the Law, and hide more Faults than Charity?” This was quite a telling point, although it had to be qualified somewhat once Royal clemency was applied.
It is not suggested here that the Charteris case was in any way orchestrated as a public relations ploy intended to bolster a partial system of justice with a strong ideological agenda. The case did indeed operate in some limited way to uphold the impartiality of criminal justice. The origins of popular interest in this case, however, lay partly in public knowledge of Charteris as a man, partly in a class-wide resentment of the particular social stratum he came to represent, but largely in his exemplification of the corrupt political regime to which he was so well-connected.
Respectable middle-class people in eighteenth-century England had no deep-felt concern for the prosecution of aristocratic rapists. The bourgeois readers of Samuel Richardson’s Clarissa had no difficulty in admiring the many admirable qualities of Mr. Lovelace, the genteel rapist of Clarissa Harlowe. Even a man like Charteris could be despised more for the vulgarity of his taste than for his crimes. Such cases did not usually come to the attention of the courts, generally being “made up” privately, or at the urging of magistrates, by monetary compensation. They could otherwise be resolved in the civil courts (see below). Civil actions took money, however, and the domestic servants who appear to have been the principal victims of sexual abuse at this time would not usually have had the resources to pursue this avenue of redress.
Domestic servants were regarded almost as natural targets for sexual exploitation. “Intelligence offices,” or employment agencies for domestics, were actively used by pimps intent on recruiting by persuasion or intimidation. Country girls moving to the Metropolis were warned, in jest or earnest, of the possible sexual demands of life in domestic service. Complaint of abuse within the household would certainly be followed by dismissal without references—a circumstance which would almost guarantee future unemployment. Colonel Charteris himself seems to have believed that any lower-class woman abroad after nine P.M. was a fair target of opportunity and “a proper and rightful Chattel of the Publick’s.” This belief may have been distasteful to others of his class, but it was not itself sufficient to bring about his ostracism.
Charteris was, before his trial in 1730, notorious as a man known to have committed rapes on many other occasions. In these, his great wealth, combined with the custom of the time, allowed him to buy his way out of legal difficulty. On one earlier occasion, in Scotland in 1722, he was prosecuted in absentia for rape and convicted. He was pardoned for this offense in the same year. These adventures gained him no respect from his peers. He was not, however, the only man of his type in this period. A few later discussions of his life have been sympathetic to the extent of observing that he was not exceptional in his habits of sexual predation. Swift said as much in 1736.
There were other cases of rape which demonstrated just as clearly the exercise of viciousness combined with unrestrained privilege. The trial, and eventual acquittal, of Lord Baltimore at Kingston Assizes in 1768 for the kidnapping and rape of a respectable milliner provides an example in point. Despite its dramatic scenario, the Baltimore case never became as notorious as that of Charteris. It is likely that this was because Baltimore, unlike Charteris, appears to have maintained a respectable, or at least low-profile, reputation outside of the sexual arena. Charteris, on the other hand, was a gentleman by birth and property who violated every rule of his own class
Although Charteris came of an old Scottish family, he does not appear to have started life with much money. His several periods of service in the Army were distinguished by strong efforts to remedy this deficiency. He was drummed out of least two regiments, once for cheating at cards and once for theft. A third period of military service also ended abruptly. In 1711 he was publicly reprimanded by the House of Commons for accepting bribes. A final period of service included one experience in combat, during the 1715 Rebellion in which he fought for the Crown. His colonelcy, the title he used throughout the remainder of his life, was either purchased, as was the custom, or won at cards.
Charteris’ immense fortune was come by dishonestly, as were many at this time. It was, however, the nature of his dishonesty which caused men of his own class to resent him so bitterly. Embezzlement of public funds might be acceptable to this class, up to a point, but Charteris’ habits of cheating at cards, running gambling dens, and lending money at usurious rates were not. His outspoken rejection of genteel conventions of the day was compounded by his fondness for cheating even lower-class people out of sums of money that were small to him, if not to them. His contempt for that most gentlemanly of institutions, the duel, did not improve matters. In taking such public stands, he effectively rejected the principles of honor, courage, generosity, and commitment to tradition which have always been invoked in justifications of the privilege of the English upper class.
Lord Chesterfield hated Charteris for what he was. He also loathed him for the public expression of his contempt for aristocratic style; Chesterfield once heard him say “that, though he would not give one farthing for Virtue, he would give ten thousand pounds for a character; because he should get a hundred thousand pounds by it: whereas he was so blasted he had no longer an opportunity of cheating people.” In a society in which style was of the essence and aristocratic hegemony a product of persuasion not force, a gentleman who publicly rejected this style—and who prospered!—was a dangerous man indeed.
There is a related, and even more compelling, reason why Charteris should have been so hated by people of his own class, as well as by others and this, again, has little to do with his forays into sex and violence. Charteris himself held no political post, but he was closely linked to the corrupt administration of his friend Sir Robert Walpole from at least 1714. The images of both Walpole and Charteris came to be associated with those of a new breed of upper-class men: rich, urban, and upwardly mobile, rather than landed, rural, and traditional. The concern of the former group with acquisition and consumption contrasted with the expressed, if not always behavioral, concern of the latter with personalized rule, a sense of obligation, lineage, and commitment to tradition.
The former group was especially threatening to landed interests around the time of the Charteris affair because it seemed to be prospering blatantly in both the financial and the political arenas. Alexander Pope’s “Homage to Bathurst,” quoted earlier, was a direct attack on the misuse of power and money by an emerging class of rich, upper–middle class financiers. His association of Charteris with two minions of Walpole—John Ward, a profiteer of the South Sea Bubble fiasco, and Peter Walter, a financial expert and steward to Walpole’s Secretary of State—suggests a relation between Charteris’ personal faults and the values and successes of this new class of public men.
Analogies between politicians unrestrained in their greed and Charteris as the personifier of sexual excess were drawn even more strongly than this. As Walpole was the “Skreenmaster-General” (that is, protector of corrupt financiers), so Charteris was the “Rapemaster-General.” The object of the attentions of both was something vulnerable and worthy of protection. In 1731, William Pulteney referred to both Walpole and Charteris in saying: “I know but one other Estate in England, which hath been scraped together by such Means … Him I mean, whom you lately saved from the Gallows; and it is the only Thing you ever did in your Life for nothing, when you had an opportunity of making a Penny; but perhaps, you might think the Similitude of your Characters and Circumstances made it impolitick to let Him suffer the Punishment, which He deserved.” Parallels between the actions and characters of Charteris and Walpole were drawn continually in the press. The Craftsman habitually referred to Walpole as “Colonel Chartres.” The famous “Epitaph on Don Francisco,” written at the time of Charteris’ death is explicit in its connections between the two men.
The reasons why the Charteris case became the most famous prosecution for rape in eighteenth-century England are clear: Charteris was a man whose style and activities made him hated by all classes. The lower- and middling-classes, tolerant though they might be of the sexual adventures of their social betters, had the satisfaction of seeing an especially nasty aristocratic rake brought to his knees. The landed classes, who would have little interest in revenging the likes of Ann Bond, could see in the humbling of Charteris their fervent, though unfulfilled, wishes for Walpole, the man he represented to them.
Walpole, who did to the Exchequer what Charteris supposedly did to Ann Bond, was widely seen as Charteris’ savior, and his action viewed as like saving like. Charteris was a habitual rapist, but this was only his avocation. It was his reputation as a renegade gentleman and a cheat, but most of all as a cheat linked personally to Walpole, that brought him down. The fact that his dishonesty was immensely profitable, and was a fault equally common and also well-rewarded in others in his particular social niche, exacerbated his many offenses. Nor did Charteris’ timing help matters: 1730 was a time when Walpole was especially under attack on a number of fronts.
The Charteris case is, however, a great deal more than a fascinating vignette of early eighteenth-century lifestyles or an illuminating encapsulation of prevalent upper-class political conflicts. Because of the tremendous amount of publicity it received, this case would have influenced popular understanding of the law of rape and the method of its prosecution in the English courts. As has been documented elsewhere in some detail, rape was not a crime whose legal ramifications were well understood by jurists, let alone the general population. There were, of course, many prosecutions for rape in eighteenth-century London. Published reports of few of them provide the wealth of information included in the documentation of the Charteris case. This prosecution is of enduring importance because of its influence on the understandings people would have had of what rape was in law and how well victims of rape could obtain redress in jury trials.
People in eighteenth-century London would perhaps have used the Charteris affair as their legal authority for matters surrounding the crime of rape because they had few alternative sources of information. Casanova, on a visit to London in 1764, was deterred from commission of this crime by the belief that such an act “could have cost my life in the view of English judges.” If this renowned swordsman had had an opportunity to glance at Table 1, his impression of the severity of English judges in this regard might have been softened. As the table shows, eight men were prosecuted in the Old Bailey for rape between 1760 and 1764. None of them was a gentleman by social class or, perhaps, by any other standards. Three of these men were convicted, none was executed. Casanova would no doubt have been heartened by these research findings. More to the point: his perceptions must have been based, not on reality, but on some popular interpretation of it. In Casanova’s time at least, the Charteris scenario of the rich predator punished (if not to the fullest extent of the law) for attacking one young and powerless might have influenced popular understanding, but it had little basis in fact.
There is ample social research to suggest that, in the present day, citizens’ perceptions of matters related to crime are informed by sources other than reality. Notions of levels of crime are also based on evidence perhaps loosely connected to reality. It has been found that perceptions of “crime waves” today are largely based on media coverage, and the level of this in turn is not necessarily based on official statistics, victimization studies, or other sources of hard data. Evidence suggests that such media influences on perceptions of crime developed in the eighteenth century.
There are no direct means of measuring eighteenth-century public opinion. Our understanding of the forces that shaped such opinion must be based on a knowledge of what people wrote about and what sources of information were available to them. However, there are general reasons for believing that a case such as Charteris’ would have both molded and expressed feelings of contemporary public concern, including perceptions about the law. In his analysis of the “popular trial” as a literary genre, Robert Hariman emphasizes the importance of such events as enactments of “social knowledge” through public performances in the recognized and orchestrated setting of the judicial trial. Considered in this sense, the “popular trial” is more important as a media event than as a setting for a judicial finding. Cases falling into this carefully defined category address issues, usually more social than legal, which require detailed public analysis and expression. Hariman, therefore, views their importance as settings for public discourses that call for mediation, if not resolution, within society at large.
The powerful images of the Charteris case are of justice triumphant (at least in the courts) and virtue defended. The creation of these took place at a number of social and political levels. At the narrowest of these, the legal setting can be compared profitably to that for routine prosecutions for this crime in the period. The next few pages present the case, point by point, in this light; that is, compared to the way rape and its attempt were usually prosecuted in trials held in the Old Bailey in the period.
Observations presented below are based on an analysis of all 199 capital prosecutions for rape heard in the Old Bailey between 1730 and 1830, and all eighty-one prosecutions for attempted rape heard in the Old Bailey between 1735 and 1830, and in the Corporation of London Quarter Sessions between 1740 and 1830. Reports of individual cases, whether in newspapers, periodicals, chapbooks, or court records, vary a great deal in the depth of their coverage. For this reason, patterns are based on analysis of only those cases within the population that include sufficient detail for assessments to be made. Discussions of the sources used, with further documentation of the findings presented here, are included in the sources cited in note 53. It is not possible, unfortunately, to extend the analysis much before 1730, as court records before this year are fragmentary.
The Charteris case was atypical of prosecutions for rape in a number of important ways. Differences and similarities between this case and others are considered below in terms of the nature of the parties involved, the outcome, the way the case came to court, the conduct of the legal proceedings, and the way these were publicized
I. Nature and Character of the Principals
It is not suggested here that sexual predation by the privileged on the lower orders was an unusual event in this period. Whatis clear is that cases involving men of this class rarely came to court. The reasons for this situation are not hard to find. Disparities in wealth and position between the parties concerned had a tremendous influence on the outcomes of cases heard in court. One obvious reason for this was the cost of bringing a prosecution. No form of assistance was ordinarily given to a victim in this area. Even if no attorney was hired, the costs of swearing out and serving warrants and subpoenas and compensating witnesses would generally represent several months’ wages for a working-class woman.
A further reason—and a reason why only a small proportion of rape cases would have been reported to grand juries—was the common practice of settling injuries cases privately, by payment often accompanied by formal apology. This practice of “making up” cases was not a corrupt one but represented the continuance of a very traditional means of obtaining redress for an injury. It was frequently a process mediated and recommended by magistrates. Its persistence was encouraged by justices who operated with authority that was very broad and whose exercise of authority rarely questioned. “Making up” even had its place in the adjudication of indictable offenses tried before petit juries and could be a process actually initiated by the court. Even assaults as serious as attempted rape could be resolved in this way, in outcomes determined by the magistrate or a higher court [ However, any suggestion of financial negotiation could be misconstrued at a capital trial. The practice of “making up” in the resolution of cases of sexual assault cast a shadow on the motives behind prosecutions for rape and provided an avenue of possible relief for defendants. As a defendant with the social status of a gentleman would have more money than his humbler counterpart, and perhaps more in the way of reputation to hazard, he would perhaps be more amenable to an informal settlement. Ann Bond apparently turned down a very large sum to abandon the prosecution—much to the amazement of the world at large.
Other factors would intimidate a poor person from prosecuting a rich one. The defendant in a criminal case could sue his antagonist for false imprisonment or malicious prosecution, if the case against him failed. Such actions could result in the award of immense damages to the plaintiffs. Corrupt uses of the legal system were widely recognized. However, in the eighteenth century, unlike the nineteenth, this circumstance was not considered as crippling the legal process. Actions for malicious prosecutions were deterred by legal rules making their initiation difficult. This apparent lack of interest in the curbing of corrupt practices was occasioned by the difficulties of identifying them in specific instances, the vulnerability of the well-to-do to such accusations, and the reluctance of the criminal courts to address disputes more suited to civil actions. However, the specter of malicious prosecution which did haunt the criminal courts evidenced itself primarily in cases of rape. It has been suggested that this fear manifested itself in the characteristic reluctance of juries to convict for this crime. Ann Bond’s willingness to prosecute, forgoing certain financial reward and risking a possible civil suit and, most likely, an unfavorable outcome, suggests unusual determination encouraged, perhaps, by outside help.
A further option for the victim was to bring a civil action against the defendant for battery, trespass, or breach of promise. In some circumstances a “crim. con.” (criminal conversation) action may have been possible. However, as these could only be brought by fathers or husbands for the sexual sullying of a daughter or wife, this would not have been an option for Ann Bond. Civil actions against sexual predators could be very effective, given the courts’ tendency to use them “to punish disapproved behavior and redress plaintiffs for wrongs beyond those that constituted the ostensible ground of the action.” Women were certainly not inhibited from using the courts to defend their sexual honor. In the late seventeenth and eighteenth centuries, most actions brought before the London Consistory Court were defamation or slander suits brought by women for this purpose.
The relationship between Bond and Charteris was standard for this type of crime. About half of the cases examined (88 out of 189 instances in which such a determination could be made) involved assaults by a fellow worker or member of the victim’s household. (No attempt was made to calculate which of the remaining half involved situations in which victim and defendant were otherwise known to each other, but this was presumably high). In most cases, (61 out of 91: 67 percent), the victim was a domestic servant. Ann Bond, as a domestic attacked by someone (in this case her master) in the house in which she lived and worked, was in most ways the typical rape victim of her time.
In other ways she was not. Apart from the fact that she was obviously extremely forthright and determined, she was probably a good deal older than most victims. It is not possible to tell how old she was, but her actions and testimony indicate that she was a young woman and not a child. Charteris’ choice of a victim of discretionary age is probably the only thing approaching a redeeming quality one can grant to Charteris in this affair. The typical rape victim of this time and place was extremely young. Almost half were probably under the age of ten. It is not possible to tabulate the ages of victims above this age, but available evidence suggests that a very high proportion of all victims were children. Charteris, unlike many of his fellow rakes, was, whatever his other faults, not apparently a child molester (at least not in this instance).
A further interesting feature of this case is the role of the character of the protagonists in it. A good reputation was a very important asset in eighteenth-century life, and one that became of greater concern as the century wore on. This probably reflects the demands of an urbanized society rather than higher standards of conduct. In an urban setting, someone who was damned in the public eye could not always redeem himself by personal conduct as he could perhaps do in rural society, where relationships were personalized and reputations were the product of experience rather than third-party rumor.
Concern for reputation became increasingly entrenched in the law. Criminal courts were very interested in the characters of both defendants and prosecutors, and testimony as to character was often the only external evidence presented in trials. It is probable that the reputations of involved parties were very important in the courtroom because so little other evidence was usually offered and because trials were conducted with few evidentiary or procedural rules to guide the jury.
In cases of rape, a secretive crime in which most evidence that could be offered was then, and is now, circumstantial, character was especially important. It was, however, the character of the alleged victim that was the usual object of interest. This manifested itself in a concern for the possibly corrupt motives of the complainant. The image of the venal or malicious prosecutrix was a common one. Defense allegations that the prosecution was unfounded and part of a strategy of blackmail were made as a matter of routine.
As I have discussed elsewhere in some detail, monetary compensation was a common issue in such cases but, as noted above, must properly be considered as part of a traditional means of dispute resolution and not as corrupt activity. The point is, however, that attacks on victim motivations and character were a standard part of a spirited defense to the crime of rape. Charteris followed the general pattern in this. His many witnesses, as noted earlier, uniformly attacked Ann Bond’s conduct and probity. He does not seem to have attacked her character in general, although his adherents certainly did so in the affidavits they collected for presentation to the Privy Council in support of a pardon.
The case was unusual in this regard in that Ann Bond did admit to accepting a gift from the defendant just before the assault, although her contention was that this had been forced on her. Such a concession on the part of the victim was normally sufficient to warrant an easy acquittal. The fact that it did not do so in this instance demonstrates the unique nature of this case.
Reputation was certainly an issue here, but, unlike other cases of its kind, the focus was on the reputation of the defendant, and not the complainant. As far as can be judged, Charteris’ unsavory past was not alluded to directly at his trial. However, his general notoriety, together with the strong feeling against him in the press and in other contemporary accounts of the incident, make it clear that it was his reputation that was the central issue. He was convicted by a jury who obviously disbelieved Charteris and his many witnesses, and accepted the entirely unsupported word of his victim.
II. The Progress of the Case from Complaint to Trial
Ann Bond was one of the very few rape victims whose case reached a jury trial. From earlier discussion, it is clear that there were many factors discouraging a victim from bringing formal charges or from pursuing them if she did. However, even those who reported the crime to a magistrate had little chance of reaching a jury. Under the Marian Statutes, magistrates were then required to forward any and all felony complaints to a grand jury. They had no legal authority to dismiss or adjudicate such cases. In fact, they routinely did both of these things.
As petty sessions records of the City of London courts do not now exist for the early eighteenth century, the frequency with which women alleging rape were turned away by the justices is unclear. It can, however, be assessed for a rather later period. The fragmentary petty sessions records of one of the City of London magistrates’ courts indicate that less than 15 percent of such charges were sent to the grand jury. Circumstances suggest that magistrates adopted such a conservative position from a desire to relieve the system of those cases that were weakest in law.84 The remaining cases would be handled by the justices in a summary and probably illegal fashion. They could be dismissed, adjudicated as “common assault,” or sent to the grand jury as instances of the indictable misdemeanor “assault with intent to commit rape.” Even if a case went to the grand jury, it could still be decided summarily. In the City, a high proportion of all cases sent to quarter sessions were decided in this way. In violation of strict legal theory, women alleging rape lost control over how the crime against them was to be defined as soon as it came to the attention of the magistrates.
The grand jury constituted the second part of the screening process. Again, it is not known how many charges of rape or its attempt were accepted by the grand jury as “true bills,” and how many were thrown out as “ignoramus.” The very firm positions taken at a later date by the City of London magistrates do suggest that, in this jurisdiction at least, a high proportion of bills considered by the grand jury for indictment would have been sent to the Old Bailey. A complainant whose case had been rejected by a magistrate could, in theory, bring it to the grand jury herself. Not surprisingly, this rarely happened and was not successful when it did. A grand jury decision to hand down an indictment did not, however, necessarily mean that the case would get to court. A “true bill” could be nol pros’d (indicating the unwillingness of the prosecutor to proceed further) in a fairly open and informal fashion, and it would be generally supposed that the matter had been resolved through an extralegal settlement. Charteris himself had had a true bill against him, for a similar crime in 1728, that had been quashed in such a manner.
Given all these obstacles, it is likely that women bringing complaints of rape or other sexual assault did not commonly expect their cases to ever reach a jury. Realists would have anticipated their cases to be adjudicated or otherwise made up at petty or quarter sessions. Bringing an allegation of rape to a magistrate (who could hear cases in private, if he wished) did not necessarily, or usually, lead to the ordeal of a rape trial.
As we know, Bond’s case did surmount all these hurdles and the final phase of the process was, of course, the trial. Here, Charteris fared rather worse than he had statistical reason to expect. Getting convicted of rape was, in the century as a whole, something rarely achieved by more than 20 percent of the defendants (see Table 1). However, in the years 1730 through 1735, six out of nineteen defendants (32 percent) were so convicted. This high conviction rate was not apparently due to the application of harsher legal rules in rape cases as at least two, and perhaps as many as six, of the thirteen men acquitted were greatly assisted by the refusal of the court to accept testimony from child victims. In only two of the eight cases involving children was the victim’s testimony accepted, and in one of these the culprit was convicted and hanged. The remaining four acquittals involved alleged attacks on adult women and were apparently achieved because of concerns of possible attempts to “make up” the matter, delay in reporting the offense, conflicts in witness testimony, and adverse comments by witnesses on the character of the complainants.
Of the seven rapists capitally convicted between 1730 and 1735, only one, Francis Charteris, was reprieved. The remaining six were executed. One of these, John Cannon, was the child molester whose victim was permitted to testify against him (see note 92). The remaining six were all involved in quite sensational crimes. Three were members of a large group of men who had attacked and gang-raped a widow publicly, and in the presence of neighbors who eventually fought them off. Two, William “Long Will” Black-well and Samuel Gregory, were highway robbers who, in separate and unrelated incidents, raped domestic servants in the course of committing other capital felonies. Of the two, Gregory was the most infamous as leader of a gang of highwaymen that included the legendary Dick Turpin.
As a convicted rapist in the early 1730s, Charteris was in illustrious company. He was also clearly distinguished as the only such felon in the period to escape the hangman following a conviction in the Old Bailey. This at a time when only a minority of capital convicts in general were actually executed. This achievement was much more remarkable than it would have been later in the century, when accused rapists had a much lower chance of being convicted and, if convicted, an even chance of being reprieved (see Table 1).
Table 1. Prosecutions for Rape in the Old Bailey, 1730 through 1790.
Executed % Guilty
1730 5 1 0
1731 1 0
1732 1 0
1733 1 1 1
1734 2 0
1735 7 5 5
1737 3 1 0
1738 1 0
1739 6 2 2
1740 4 2 1
1741 3 0
1742 4 0
1743 1 0
1745 1 0
1746 1 1 0
1747 6 0
1748 5 1 0
1749 2 1 0
1750 5 0
1730?1750 60 15 0.25 8 0.53
1751 5 0
1752 2 0
1753 2 0
1754 4 1 0
1755 3 0
1756 1 0
1757 3 0
1758 1 0
1759 4 0
1762 5 3 0
1763 2 0
1764 1 0
1765 2 0
1767 3 1 0
1768 6 1 0
1769 4 2 2
1770 2 0
1751?1770 50 8 0.16 2 0.25
1771 9 0
1772 9 2 0
1773 3 3 1
1774 5 0
1775 5 0
1776 3 0
1777 6 1 1
1778 4 1 1
1779 6 1 1
1780 4 1 0
1781 1 0
1782 1 0
1783 1 0
1784 1 0
1786 4 0
1787 3 0
1788 2 0
1789 4 0
1790 3 0
1771?1790 74 9 0.12 4 0.44
1730?1790 183 31 0.17 15 0.48
Notes: The table reflects capital prosecutions for rape only and, for reasons given, cannot be used even as an indicator of the number of complaints of this crime brought to the attention of the magistrates.
Data given above regarding the numbers and proportions of executions for rape are undoubtedly underestimates. Statistics on who among the capitally convicted were pardoned and who were actually hanged in the eighteenth century are not entirely reliable. 1 In determining just who among the condemned were obliged to “dance the Newgate frisk,” I have relied heavily on a variety of unofficial publications. Sources of data include the Old Bailey Proceedings 1730 through 1790, the Annual Register 1758 through 1790, the Gentleman’s Magazine 1731 through 1790, selected contemporary newspapers, and Humphry W. Woolrych, The History and Present Results of the Present Capital Punishments in England … (London: Saunders and Benning, 1832).
1 Beattie, Crime and the Courts, 641?42.
This lower conviction rate and higher reprieve rate of a later time was, at least in part, a consequence of the traditional reluctance of juries to convict on capital charges in cases where most of the evidence was circumstantial. When rape was removed from the list of capital statutes in 1841, legislators were in no way attempting to trivialize this crime. They believed that juries generally refused to convict for this crime unless the chances of the defendant’s sentence being commuted appeared to be high.
An indicator of the strength of courtroom feeling against Charteris is that he was convicted even though the charge against him had been changed from attempted rape to rape itself. This action, it will be remembered, was taken by the grand jury, but perhaps at the instigation of Bond’s counsel. It was widely understood at the time that charges of attempted rape were frequently brought when rape itself had occurred—the former crime being much easier to prosecute successfully.98 Nonetheless, the two crimes were very different ones, the proving of an attempt negating proof of its completion, and vice versa.
When the charge was changed during the legal process, whether by the complainant’s wish or not, this step was usually regarded with deep suspicion by the court, and was undoubtedly an encouragement for the jury to acquit. In this case, any such suspicion was overwhelmed by feeling against Charteris. This was so even though the reasons given by Mr. Bliss, attorney for the prosecution, as to why he at first counseled his client to charge the attempt only were weak indeed.
One should not assume that, because it was apparently obtained through bribery and political chicanery, the process by which Charteris’ pardon was achieved was unusual. The sums of money which changed hands may have been extraordinary, but the process itself was not. There was no appeal at this time of a capital conviction, except on very narrow technical grounds, and the means by which the Privy Council decided who was to be cast for execution and who reprieved were often unfathomable and susceptible to manipulation. Charteris’ pardon as a capital convict was not unusual. As a convicted rapist, it was exceptional at this time. However, in view of his wealth and political connections, it was also unsurprising.
III. The Conduct of the Trial
In minor ways, the trial was a normal one. Ann Bond had reported the offense immediately, a decision always regarded favorably by the court. She had not brought the prosecution herself but had delegated this to her genteel friend and protector, Mrs. Parsons, who in all probability paid for the legal expenses involved. This was not at all unusual. Most prosecutions of this kind were brought, and presumably paid for, by employers, friends, or relatives of the victim, or even by public-spirited doctors or magistrates. The servant girls who were largely the victims of such attacks would rarely have had the resources to fund a prosecution. In fact, recourse to the law in this way was probably limited mainly to those victims with access to sympathetic persons of means (see notes 60 and 61).
One tactic used by the prosecution was to accuse Bond of theft. This technique was used in other rape trials. It may have been common in other types of case involving servants pitted against their masters as a general way of attacking the credibility of the opposing party. Certainly, malicious prosecutions of servants by their masters were a standard feature in eighteenth-century courts and false allegations usually involved theft. In this instance, the prosecution’s allegation was clearly not believed.
The trial lasted four hours and jury deliberations took fifteen minutes. This was actually long by standards of the time, when several capital cases would often be handled in one day by a single judge. In all probability, the trial was prolonged by the fact that both prosecution and defense had legal counsel. This was most unusual as the judge was commonly the only lawyer in the courtroom. The majority of prosecutors did not have counsel, probably because they could not afford one. Defense counsel was rare for the same reason, and because, in law, someone accused of a felony was theoretically denied the right to have a lawyer conduct his case. Defense counsel could be present, but could act in a limited capacity only. Both Charteris and Bond were therefore quite privileged in each being represented by legal counsel.
There is one way in which Charteris was favored. He was not arrested before the trial. In law, a person accused of a felony could be bailed, according to some interpretations of the law. In practice, policies on bailing accused felons were cautious, bail was granted sparingly, and it would have been normal for a man accused of rape to be denied bail on general legal grounds. Charteris was fortunate to have avoided arrest. Bail may not have been an option for him. As we have seen, Charteris was traveling to and fro between London and Belgium during the time from the complaint to the trial. It is possible that the question of bail never arose because Charteris’ movements enabled him to avoid arrest. It is, however, more likely that the timing of the alteration of the charge from the misdemeanor to the capital felony allowed insufficient time to organize his arrest.
The failure of the authorities to arrest Charteris should have helped him in one other important way. In law, it was possible, at least according to some opinions, to release an accused felon without bail when “it manifestly appear that no such Crime was committed, or that the Cause for which alone the Party was suspected, was totally groundless.” Charteris’ freedom, apparently without bail, may have been occasioned by either his geographic mobility or good planning. It did, however, imply a level of judicial support for his innocence.
Whatever the situation, the fact of being free before trial greatly increased the accused’s chances of acquittal. It is not possible to evaluate the strength of this factor for cases of felony, as appropriate data do not appear to be available. For cases of attempted rape, a misdemeanor usually heard in quarter sessions, the relationship is clear. A man accused of this offense doubled his chances of acquittal if he was bailed. This was doubtless because those free could better prepare their defenses, and because those in this group would be wealthier. If the same inference can be applied to felony cases, then Charteris’ pretrial freedom was an advantage indeed.
In all other ways the conduct of the trial favored the prosecution. A woman charging rape in the Old Bailey faced an ordeal attributable to more than just attacks on her character.
To have any chance of proving her case she had to give explicit and public testimony to the fact of carnal knowledge. As a matter of routine, women in this situation were subjected to humiliation and extensive verbal abuse. Ann Bond was not treated in this way. She gave the necessary evidence in a minimum of words and was neither cross-examined nor made game of by the court or by those in attendance. This consideration, slight though it might now appear, was rare at the time.
Rape, like robbery, was a crime that involved the threat or application of force. Definitions of what constituted this, however, varied markedly between the two offenses. For robbery, it was interpreted very broadly indeed. Menace, for example, was a fully satisfactory substitute for actual violence and eventually came to incorporate threat to character as well as person. In rape, on the other hand, force almost invariably had to be proven with evidence of its application. A victim who could not demonstrate such evidence to the court had little chance of being vindicated. Bond’s evidence that Charteris had raped and then beaten her was her word alone. No other evidence was offered or asked for.
The most telling indicator of just how unusual this prosecution was in a legal sense is the related point that Ann Bond brought no medical evidence of any sort to the court. Usually such evidence was presented in the form of testimony by a doctor, midwife, or apothecary, based on a physical examination of the victim. Evidence of this kind was frequently useless. The state of medical knowledge was poor, and the practitioners of it brought into the courtroom were often unable to determine whether penetration of the victim had occurred. Nonetheless, absence of such expert testimony was taken very seriously by the court. This was perhaps because of the lack of other kinds of evidence in these cases, because a victim who had gone to a doctor was thought to show greater sincerity of purpose, and because medical testimony was regarded as relatively impartial in an age when witnesses were frequently suspected as being corrupt. Surprisingly enough, there was no mechanism by which the court could have a complainant’s injuries examined by experts. Throughout the eighteenth century, panels of matrons sat to examine the claims of capitally convicted women who were “pleading their bellies.” These panels do not seem to have been used to examine rape victims.
A victim who did bring a medical witness undoubtedly took a chance, as a doctor who could only swear to the fact that the prosecutrix was no longer a virgin sent a double message to the jury. However, medical testimony was virtually essential if a conviction was to be obtained. Ann Bond’s triumph in the courtroom was a most unusual event, for this reason alone.
A related issue concerned the fact of carnal knowledge, clearly a vital element of the crime which had to be proven in court. Varying definitions of carnal knowledge were applied by the eighteenth-century courts. The toughest for the prosecution was the requirement that both penetration and emission be proven. The was the standard applied to Ann Bond even though courts in the first half of the century generally required evidence of either. In the event, the court accepted the fact of carnal knowledge on Bond’s word alone.
IV. The Publicity
The great extent to which the Charteris case was publicized has already been discussed, and is further documented by the volume of primary sources cited in the Appendix. The interesting question here is why Charteris was singled out for such persistent attention? It could not have been because of a shortage of candidates. Charteris, for all his faults, did not pretend to be other than what he was. There were men who were charged with rapes at least as vicious, and who could also reasonably be accused of the sin of hypocrisy.
Two gentlemen, both ministers of the Established Church, provide examples in point. The Rev. Richard Green was acquitted in 1769 of the rape of a servant of apparently excellent character, who did all the right things in support of her case. This was in spite of the fact that Green’s alibi was shown to be fraudulent.118 The Rev. Benjamin Russen was convicted and executed in 1777 for raping several children who were his pupils. Contemporary discussion of this case primarily addressed the culprit’s strange motivation. Lon-don was terrorized in 1789 and 1790 by attacks on women carried out by a man known as “The Monster.” When finally caught and tried, the offender’s reasons for his acts remained obscure and frightening.
The last two of these cases were very well publicized, and this is not surprising. Each represented something dark and threatening that went far beyond normal conceptions of the assaulter of women and his motives. Both of these cases were, however, quickly forgotten. Neither Russen nor Renwick (“The Monster”) Williams achieved the lasting notoriety of Charter-is. The reasons for this cannot lie in the nature of the various crimes of the villains in question. It is likely that Charteris was demonized for additional crimes which had nothing to do with his sexual habits: betrayal of the political and social values of the landed class to which he belonged by birth and by position.
Charteris was therefore coopted for the role of sexual villain of the century for reasons only loosely related to his sexual behavior. At his trial, he was denied that sympathy of the court an accused rapist (unless charged with an attack on a child) could normally expect, whatever his social class. Against the almost universal practice of the time, the focus of the case was the character of the defendant and not the victim. The accused was granted no special privileges in law. The limited evidence brought by the prosecution would have been insufficient to bring about a conviction in almost any other case. In this prosecution, unlike any other I have encountered, the focus of judicial interest was primarily on the character of the defendant.
His conviction was not just a piece of theater showing the gullible that the rich and aristocratic were also accountable to the law. Its effect was also to give people a distorted idea of what the crime of rape was in law and how allegation of it was received by the criminal courts. As such, it is an important legal case, but not as a typical product of the legal system of its time or as any sort of indicator of popular attitudes toward aristocratic privilege or the crime of rape itself. Its importance lies in how it potentially misinformed popular understanding.
Stripped of its political associations, the Charteris case suggested that a man could be convicted of rape on the unsupported testimony of his victim. It also suggested that, when the reputation of the victim was not in doubt, a court would uphold her rights even in the face of the most well-equipped defense. These things may have happened in this case; they virtually never happened in others.
In eighteenth-century London, prosecution of a rape was a traumatic and usually unsuccessful experience for the victim. The publicity surrounding the Charteris case encouraged false perceptions about how easily rape could be prosecuted as a capital felony. It also presented an ambiguous message about the extent to which a gentleman of substance was generally accountable to the law. Although many other cases of rape were reported in the press in this period, none commanded popular attention like the Charteris case. This must have exerted a strong and mixed influence on popular perceptions of the seriousness with which this crime was regarded in the courts. On the one hand, it showed that a poor crime victim could prevail against the advantages of privilege. On the other, it showed that the impartiality of the justice system would not extend so far as to hang one of its own. Charteris’ case showed the world that a well-funded defense of an immensely rich villain did not prevail completely. Nonetheless, despite the cost to his health and bank balance, Charteris was able to avoid the gallows when others in his position could not. In this sense alone, the case served to misinform the public about the typical nature of such prosecutions.
This conclusion seems reasonable but should not be overstated. Many of the 183 rape cases heard in the Old Bailey between 1730 and 1790 (not to mention the unknown number of cases adjudicated in petty and quarter sessions in the Metropolis in the period) were well reported in the press. Interested citizens could go beyond the Charteris affair to gain some understanding of how the courts dealt with routine cases of this nature. They would also have been aware of the tremendous discretionary powers exercised by the magistrates in such cases. Few modern observers of sensational trials such as those of Claus von Bülow and O. J. Simpson would believe these to bear much relation to comparable prosecutions involving the ordinary citizen. However, the immense publicity surrounding the Charteris case must have had its effects. Certainly the frequent references to it by observers writing decades later show these effects to have been persistent. The conduct and outcome of the trial presented a view of legal impartiality and concern for the rights of poor victims that could not otherwise be justified. (The final disposition of the case, of course, certainly offered a more realistic image.)
Lisa Cuklanz specifically addresses the “famous case” phenomenon through analysis of rape trials. Her contention is that media reporting (together with fictionalized representations) of these trials constitutes “mythic narratives” through which prevailing ideology is formed, modified, and expressed to the world at large. On the basis of specific trials from the 1970s and 1980s (a period during which legal attitudes toward the crime were, of course, greatly modified), Cuklanz suggests that changes in legal attitudes were conveyed to the public in these ways. She does not regard media and fictionalized accounts as passive vehicles for transmitting information about changing legal conceptions of the rules under which evidence in cases of rape came to be evaluated. Rather, she sees these accounts as in some way mediating the ambiguities of public recognition of the shift from the old conceptions to the new. Their function is seen as conveying the notion of change to the world at large. In this sense, these secondary portrayals of “famous rape trials” are viewed as major influences on the emergence of new public understandings.
If this analysis holds good for the present day, did some version of it yet apply in the eighteenth century? There is historical evidence to support earlier contention that it did and that detailed and sensational accounts of criminality have been a strong influence on public understanding of a crime and the criminal process. The importance of popular print sources (newspapers, chapbooks, magazines, and other forms of street literature) in the mobilization, and perhaps creation, of public opinion was great. Newspaper circulation and readership rates were high, even in 1730. Although costs put them beyond the reach of a working-class budget, it is estimated that each newspaper passed through the hands of up to forty readers. Literacy was almost universal among the middle classes, and in the English population as a whole, the literacy rate approached fifty percent. The gap between the literate and the illiterate was to some extent broached by practices of reading aloud in taverns and other public places. Sensational news was reported, read, and otherwise widely disseminated in this period. The popular literature of crime “was widely read by a variety of people” and “probably no other printed material in the eighteenth century so efficiently informed, consoled, and enthralled readers, and probably no other century produced so many different anthologies of cases.”
There are suggestions that crime reporting in the period may have had an ideological component. The Charteris case, of course, had political connotations at a number of levels. A unique characteristic of it is that the sources documenting it report procedural matters in unparalleled detail. As no other case in the century provided such detail, accounts of this trial were the principal sources on which popular understanding of the conduct of such trials would have been based. As discussed, every reported procedural aspect of the conduct of the trial was quite atypical. It is reasonable to assert, at the very least, that the extensive reporting of this case served to misinform the world at large about all important aspects of the legal processing of cases of this nature.
I am not suggesting that these effects were a result of any sort of purposive action on anyone’s part. As we all know, the power of an act’s consequences is not always a function of the intentions behind it. Without the presence of Walpole in the equation, the Charteris case would never have had the impact that it did. For Walpole’s many enemies in the press and elsewhere, the Charteris affair was a scandal too delicious to let go of. Charteris’ crimes of the flesh paralleled his friend Walpole’s assaults on the Exchequer. This parallel was drawn by the wits at some length and with some considerable enjoyment. The social impact, as well as the several outcomes, of Charteris’ prosecution were strongly influenced by the character of Britain’s first Prime Minister, the social stratum he represented, and by his choice of friends.
Were there other instances in which eighteenth-century media coverage distorted public perceptions of crime and its control? There are certainly examples of the press promulgating images of existing legal practice which yet reflected flawed legal substance. One example lies in the way attempted rape was handled by the courts. Rape itself was evidently very difficult to prosecute successfully. It was poorly defined in law, difficult to bring to trial and hard to substantiate. However, the related misdemeanor of “assault with intent to rape” was usually a much easier matter for the courts. As an indictable misdemeanor, it could be prosecuted either at quarter sessions or at the Old Bailey or the assizes. (In fact, as noted earlier, it was most often dealt with summarily.) In addition, these courts always had the option of convicting on the lesser charge of “common assault.”
There is no doubt that misdemeanor prosecutions were brought when the capital crime had been committed. However, there were a number of legal factors that made attempted rape more difficult to prosecute successfully than other misdemeanors. Firstly, this crime was considered to apply only to those attacks which just fell short of the capital crime.126 An assault with intent to commit rape was not just a sexual attack. Proof of it required more than just a demonstration of “what the attacker had in mind.” It was a crime in which the capital act had to be all but completed. In this sense, attempted rape was much more tightly defined, and much harder to prove than other indictable assaults.
An acquitted rape defendant could be convicted of attempted rape at a later trial. The problem was that, while the prosecution had to prove a violent attack almost resulting in rape, proof of rape itself resulted in the negating of its attempt and the defendant would have to be acquitted, “the misdemeanor (being) merged in the felony.” The problem here was that the two crimes were mutually exclusive. Proof of one negated the other. The closer the prosecution came to proving the fact of rape in one trial, the harder it was to prove its attempt at a subsequent trial. It is probable that this factor produced conviction rates for attempted rape which were low, although much higher than for rape itself.
If the two offenses could have been addressed at the same trial, this difficulty would have been greatly alleviated, with the jury being given the choice of deciding on which side of the fine line of attempt and completion the crime lay. This was not possible as the one offense was a capital felony, the other a misdemeanor. Trials for felonies and indictable misdemeanors were conducted according to different rules. A prosecution for felony could not, therefore, result in a misdemeanor conviction.132 Nor could a grand jury return both felony and misdemeanor indictments based on the same fact. Earlier authorities advanced the opinion that someone convicted of a felony could then have his conviction changed to a misdemeanor, at the discretion of the court. Nonetheless, the rule that someone charged with a felony could not be convicted of a misdemeanor at the same trial generally prevailed throughout the eighteenth century.
The existence of “partial verdicts,” where someone accused of a capital felony could be convicted of a “single” (clergyable or noncapital) felony has long been appreciated as an important means of softening the effects of an otherwise savage penal code. These accounts emphasize the great importance of single felony convictions in trials for capital crimes such as murder, theft, and housebreaking. The fact that such verdicts could not be brought in rape prosecutions, because no lesser felony existed, has attracted little attention.
Although not a significant problem in most capital prosecutions, for reasons given, the felony/misdemeanor rule was undoubtedly a great impediment to the prosecutions related to rape. Difficult though they might be, prosecutions for attempted rape were easier to bring than for rape itself. They were brought more often than for rape, they were more successful, and defendants so convicted were more likely to be punished. This was true in the courts of Surrey and in the Old Bailey and the courts of the City of London. The bizarre judicial rule that did not impede the prosecution of any other crime was perhaps the most important legal impediment to the effective prosecution of those committing violent sexual assaults.
Newspaper accounts were not generally informed as to fine legal distinctions and would occasionally refer to convictions for attempted rape as though these were lesser penalties for the crime of rape itself. In doing so, the press perhaps expressed the reality of many of these trials. Nonetheless, their effect was to confuse public understanding of the crucial distinction between two related but quite different crimes.
If Ann Bond’s original complaint had not been upgraded, she may perhaps have obtained a conviction for attempted rape. However, given the jury’s apparent willingness to accept her testimony to the full fact, this may not have been so. In the event, Charteris’ punishment—a spell in prison and massive financial losses—effectively exceeded that given to those convicted of this misdemeanor.
As noted at the beginning of this essay, analysis of the “famous case” does have its place in the methodological toolkit of the social historian. But its importance is not limited to its qualification as a period snapshot of popular opinion on its immediate circumstances. How could it be, indeed? It is the bizarre and the unusual that attract lasting attention, not the routine. The moral here, and the most general point of this article, is that “famous cases” can tell us a good deal, but their true message rarely lies in their immediate substance. To appreciate just what they represent and what they can tell us, one must contrast them with the routine of similar cases prosecuted. Only then can their proper significance be assessed. Taken out of its social and legal settings, the “famous case” loses much of its original resonance. Only when presented in full context can it have true meaning as an artifact of its time.
Moreover, the significance of such cases can change over time. Cynthia Herrup’s account of the 1631 trial of Lord Castlehaven for rape and sodomy carefully dissects the several ways in which this case has been regarded over the years. Contemporary accounts reflected larger and nonsexual concerns for notions of family and honor. Rather later accounts, particularly those written after the onset of the English Civil War, emphasized the decadence and unreliability of aristocratic culture. Only post–seventeenth century accounts have focused primarily on the sexual offenses that were its legal substance.
The Charteris case has also been perceived in different ways at different times. Contemporary accounts reveled in it as an irresistible metaphor for the corrupt political regime with which Charteris was undeniably, although coincidentally, linked. In these, the colonel’s noble heritage is recognized, but even more so is his vast wealth. Outraged reactions to his case later in the century, by Lord Chesterfield and others, perhaps reflect perceptions of class betrayal. Aristocratic resentment of this may have become stronger in an industrializing society where fixed social arrangements were becoming rather less rigid. Modern-day references to Charteris, when these occur, depict his case as a generalized example of eighteenth-century privilege directed to the goals of sexual license and oppression. The political imagery, not to mention the legal niceties, of the case are unappreciated. As with all “famous cases,” and perhaps all highly publicized events, understandings of the Charteris trial are temporal and contextual.
Rape was not regarded as a serious social problem in this period. Cases of it rarely came to the attention of the courts, especially in the seventeenth and early eighteenth centuries. Published discussions of the gradual increase in cases of it coming before the courts all address changing notions of sexuality, gender relations, and other social factors associated with a modernizing world. The Charteris/Bond affair, however, was but one case. It may serve as an illustration of prevalent arrangements of gender and power, but it can hardly be explained by them. Its circumstances had more to do with politics and privilege than with the gender relations of the time. Nonetheless, its enduring impact lay in conveying information about the nature of the crime of rape and the way it was dealt with by the courts. It seems clear that the mixed message sent by Charteris’ conviction and subsequent pardon can scarcely have encouraged rape victims in the period to pursue their cases in a trial court.
Antony E. Simpson is a librarian at the John Jay College of Criminal Justice. Research for this study was supported by a grant from the PSC-CUNY Research Awards Program of the City University of New York.
1.ï¿½ T. B. Howell, comp., A Complete Collection of State Trials and Proceedings for High Treason, and Other Crimes and Misdemeanours (London: Longman, 1816–28). J. G. Muddiman’s comments on this source as a “Whig compilation” constitute the most trenchant of the many criticisms of it. The Bloody Assizes (Edinburgh: William Hodge, 1929), 152.
2.ï¿½ Lillian Faderman, Scotch Verdict: Dame Gordon vs. Pirie and Woods (New York: Morrow, 1983).
3.ï¿½ On the lack of sexual connotation attached to female cross-dressers, see Lynne Friedli, “‘Passing Women’—A Study of Gender Boundaries in the Eighteenth Century,” in Sexual Underworlds of the Enlightenment, ed. G. S. Rousseau and Roy Porter (Manchester: Manchester University Press, 1987), 234–60. On traditional tolerance for lesbianism, see A. D. Harvey, Sex in Georgian England: Attitudes and Prejudices from the 1720s to the 1820s (New York: St. Martin’s Press, 1994), 111–15.
4.ï¿½ John H. Langbein, Prosecuting Crime in the Renaissance: England, Germany, France (Cambridge: Harvard University Press, 1974); “Shaping the Eighteenth-Century Criminal Trial: A View from the Ryder Sources,” University of Chicago Law Review 13 (1983): 1–136; Peter Linebaugh, “The Ordinary of Newgate and his Account,” in Crime in England 1550–1800, ed. J. S. Cockburn (London: Methuen, 1977), 246–69. In what is perhaps the most important recent development in historical legal bibliography, the Old Bailey Proceedings have just been published in electronic form. They are readily accessible at no cost through the Web: http://www.oldbaileyonline.org. This database includes the full text of the original reports, more printer-friendly transcripts of them, and some links to related primary sources. It can be searched in a variety of interesting ways. Other links include an excellent bibliography of secondary sources. When complete, the database will cover the period 1674 to 1834. At the time of writing, it goes from 1714 through 1799.
5.ï¿½ James Mountague, The Old Bailey Chronicle; Select Trials (1742); The Proceedings at the Sessions of the Peace. Also helpful was The Tyburn Chronicle. (Full citations to these and other primary sources documenting the Charteris trial are given in the Appendix.)
6.ï¿½ In reconciling these, I have tried to assess their internal consistency and have also relied on John Langbein’s admonition regarding use of what he terms the Old Bailey Sessions Papers. “The generalization that emerges is this: If the OBSP report says something happened, it did; if the OBSP report does not say something, it still may have. Legal historical researchers can rely upon the OBSP, but not for negative inferences” (“Shaping the Eighteenth-Century Criminal Trial,” 25).
7.ï¿½ His case has commanded some attention in recent times. However, only two modern treatments of it are of interest. Arthur Vincent is valuable as a source on Charteris’ life, although his comments on the trial are not. “Colonel Francis Charteris (1675–1732),” in Lives of Twelve Bad Men: Original Studies of Eminent Scoundrels by Various Hands, ed. Thomas Seccombe (New York: Putnam’s, 1894), 200–18 and 357–58. E. Beresford Chancellor provides the best account of the life, adventures, and family relationships of this man (Col. Charteris and the Duke of Wharton [London: Philip Allan, 1925]). This relies upon some primary material not used here. Even this account does not give much attention to the details of the trial.
8.ï¿½ Horace Walpole, who had met Charteris, made this identification in 1780, although Hogarth did not apparently take kindly to this ascription. See Horace Walpole’s Correspondence, ed. W. S. Lewis (New Haven: Yale University Press, 1937–83), 15: 142. The famous Hogarth plate shows the bawd in the foreground enticing the fresh country girl. The rake leers approvingly in the background. (Good reproductions of this and other Hogarth series are to be found on the Web at http://www.haleysteele.com/hogarth/toc.html.) For observations on the career of Mother Needham and the sources documenting it, see Chancellor, Col. Charteris, 23–25 and 82–83.
9.ï¿½ See Chancellor, Col. Charteris, 25–26; Jonathan Swift, The Correspondence of Jonathan Swift, ed. Harold Williams, 5 vols. (Oxford: The Clarendon Press, 1965), 3: 85; John Percival, Earl of Egremont, Diary of Viscount Percival … Vol. I. 1730–1733 (London: H.M.S.O., 1920), 75, 76, and 235; Philip D. Stanhope, Earl of Chesterfield, Letters Written by the Late … Earl of Chesterfield to His Son …, 3rd ed., 2 vols. (London: J. Dodsley, 1774), 2: 315.
10.ï¿½The Life of Don Francisco (***see Appendix for full reference); The British Journal, 25 April 1730; John H. Burton, Lives of Simon Lovat and Duncan Forbes, of Culloden … (London: Chapman and Hall, 1847), 309–10; Henry Mackenzie, The Anecdotes and Egotisms of Henry Mackenzie, 1745–1831, ed. Harold W. Thompson (London: Humphrey Milford, 1927), 103.
11.ï¿½ “On Colonel Francisco” (see **Appendix for full reference). The Fall of Mortimer, Henry Fielding’s Rape Upon Rape, Michael Clancy’s The Sharper. See Bertrand A. Goldgar, Walpole and the Wits: The Relation of Politics to Literature, 1722–1742 (Lincoln: University of Nebraska Press, 1976), 107–8; Swift, The Correspondence, 5: 81.
12.ï¿½ The victim’s first name is variously spelled “Ann” and “Anne.” Charteris’ family name is sometimes spelled as it was then, and is now, pronounced: “Chartres” or, more rarely, “Charters.”
13.ï¿½Fog’s Weekly Journal for 6 December 1729 reported that a “certain noble Colonel” was to be sued in a civil court for the attempted rape of a servant at pistol-point. His offense was considered aggravated by his “using a Weapon altogether unlawful upon such an occasion.” These comments almost certainly referred to Charteris, but it is not clear whether they addressed the attack on Ann Bond, or yet another of the colonel’s misdeeds.
14.ï¿½ Such was reported by The London Evening-Post, 27–29 November 1729. Surviving official records, however, only indicate this grand jury action as being “pend(u)” (pending). County of Middlesex, Sessions Books, October 1729, 266 (no. 208), London Metropolitan Archives (hereafter LMA) MJ/SB/B/0086.
15.ï¿½The Country Journal; Or, The Craftsman, 13 December 1729; Fog’s Weekly Journal, 13 December 1729; The British Journal: Or, The Censor, 15 November and 27 December 1729.
16.ï¿½ See The Daily Post, 19 December 1729. Regardless of the standing of the first indictment, a second, for the felony, was upheld by the grand jury on December 3rd. County of Middlesex, Calendar of Indictments, 1724–1740, LMA MJ/CJ/4/92.
17.ï¿½ See The British Journal, 28 February 1730, in addition to the four principal sources documenting the trial.
18.ï¿½ “Prisoner. Did you not tell some of the Family, that since I had so much Silver, I should have my Instrument tipp’d, for it would not please a Woman? Prosecutor. No.”Select Trials (1742), 3: 200. Charteris seems to have asked this question himself even though he had the advantage of counsel to conduct cross-examination on his behalf. John Arbuthnot, no admirer of Charteris, believed him to be impotent and on this basis felt him to be innocent of this crime. “Epitaph on Don Francisco” (see Appendix for full reference).
19.ï¿½ From John Percival’s diary for 4 March 1730: “I heard the King intends to pardon Colonel Chartres, it being found out that the woman he would have ravished was a common strumpet, at least it being so related at court…. All the world agree he deserved to be hanged long ago, but they differ whether on this occasion.” Percival, Diary, 76. See also previous note.
20.ï¿½ The earl may not have been an entirely willing party in this. Wemyss’ marriage to Miss Charteris, against the wishes of her father, was unhappy and short-lived. Sir William Fraser, Memorials of the Family of Wemyss, 3 vols. (Edinburgh, 1888), 1: 347–54.
21.ï¿½The British Journal, 7 and 21 March, 11 and 18 April 1730; Chancellor, Col. Charteris, 141.
22.ï¿½The British Journal, 29 August and 5 September 1730; George Menary, The Life and Letters of Duncan Forbes of Culloden…. (London: Alexander Maclehose, 1936), 347. The mechanics of Charteris’ pardon, including the question of whether his property was actually subject to confiscation, are not well documented by existing manuscript sources. The P.R.O. State Papers: Domestic Series yield only two legible items relating to this matter. One, dated 10 April 1730, resulted from a special meeting on the issue attended by the Privy Council and all Old Bailey sessions judges. This unusual gathering resulted in Charteris’ pardon (PRO SP 36 18/125; reel 63 in the Harvester Press Microfilm edition of this series). The fact that powerful influence was undoubtedly brought to bear on Charteris’ behalf is evidenced by a letter written to the Secretary of State a week before the pardon. This presents a strong case for Charteris’ release from Newgate on the grounds of his ill-health (PRO SP 36 18/96; reel 63). The writer, Dr. Mead, was a most influential figure at court. Apart from being Royal Physician, he was frequently consulted on various matters by both Walpole and George II. On at least one other occasion he had interceded successfully in the attempt of a privileged miscreant to obtain relief. Dictionary of National Biography, hereafter DNB, 66 vols. (London: Smith, Elder, 1885–1901), 13: 181–86.
23.ï¿½The British Journal, 12 September 1730. Chancellor estimates the total expense of the case to Charteris to have been in the region of £15,000. Col. Charteris, 143. This represents well over one million pounds in today’s terms. (This applying the formula, given to me by the Bank of England, that the spending power of £1 in 1730 can roughly be equated to £84—or U.S. $120—in 2002.)
24.ï¿½Gentleman’s Magazine, hereafter GM, 2 (March 1732): 378 and 2 (April 1732): 718; DNB, 4: 135–6; Menary, The Life and Letters, 346. Forbes was an eminent Scottish lawyer and a personal friend of both Charteris and Sir Robert Walpole, who was also remembered in the will. Burton, Lives, 305 and 326; Chancellor, Col. Charteris, 154.
25.ï¿½The British Journal, 26 September 1730.
26.ï¿½ In losing any of his property in this way, Charteris was unusual as a felon. The legal rule regarding the confiscation of the property of a convicted felon was rarely applied in this period. César de Saussure, A Foreign View of England in the Reigns of George I and George II …, trans. Mme. Van Muyden (New York: E. P. Dutton, 1902), 119–20. By the early eighteenth century, juries had begun to adopt the standard practice of reporting convicted felons to possess “no goods.” J. M. Beattie, Crime and the Courts in England, 1660–1800 (Princeton: Princeton University Press, 1986), 337–38. See also note 22.
27.ï¿½ “Property, Authority and the Criminal Law,” in Albion’s Fatal Tree: Crime and Society in Eighteenth-Century England, ed. Douglas Hay, Peter Linebaugh, and E. P. Thompson (New York: Pantheon, 1975), 17–63.
28.ï¿½ Quoted in Hints to the Public and the Legislature, on the Prevalence of Vice, and on the Dangerous Effects of Seduction (London: E. Wilson, 1811), 102.
29.ï¿½ So thought Horace Walpole. See Memoires of the Last Ten Years of the Reign of George the Second, 2 vols. (London: John Murray, 1822), 2: 460.
30.ï¿½The British Journal, 10 October 1730. When in Newgate his wealth did obtain for him the privileges of light fetters and a servant. The Malefactor’s Register (see Appendix for full reference). The advantages of money in this regard were not unusual for the time. Money could not, however, purchase immunity from the diseases then rife in English prisons. W. J. Sheehan, “Finding Solace in Eighteenth-Century Newgate,” in Cockburn, Crime in England, 229–45. See also note 22.
31.ï¿½Some Authentick Memoirs of the Life of Colonel Ch———s, 1 (see Appendix for full reference). This was written after Charteris’ conviction, but before his pardon. A later comment shows a more realistic perspective: “(I)t is more difficult to get a rich Man hang’d, than to save a poor Fellow from the Gallows” (Scotch Gallantry Display’d, 31; see Appendix for full reference).
32.ï¿½ See Ian Watt, The Rise of the Novel: Studies in Defoe, Richardson and Fielding (Berkeley: University of California Press, 1957), 220. Terry Eagleton’s analysis seems to support this perception even though, for Eagleton, Clarissa is a subversive novel expressly intended by its author to vaunt the superiority of middle-class over aristocratic values. The Rape of Clarissa: Writing, Sexuality, and the Class Struggle in Samuel Richardson (Minneapolis: University of Minnesota Press, 1982), 23.
33.ï¿½ Charteris was well known for his obsession with working-class women and contemporary accounts made much of his choice of “such as were strong, lusty, fresh Country Wenches, of the first Size, their B-tt-cks as hard as Cheshire Cheeses”—and so on. Some Authentick Memoirs, 10. A woman representing herself as Charteris’ daughter wrote to Swift in 1733 commenting upon her alleged father’s historical interest in “dirty wenches” and stating the opinion: “For if a man must do wrong, he should aim a little higher than the enjoyment of a kitchen-maid, that he finds obstinately virtuous.” Swift, The Correspondence, 4: 173.
34.ï¿½ See Edward Ward, The London-Spy Compleat …, 3rd ed., 2 vols. (London: J. How, 1706), 1: 73. It will be remembered that Ann Bond was hired through an intermediary.
35.ï¿½Satan’s Harvest Home; Or the Present State of Whorecraft, Adultery, Fornication, Procuring, Pimping, Sodomy, and the Game at Flatts, and Other Satanic Works Daily Propagated in this Good Protestant Kingdom (London, 1749), 3.
36.ï¿½ One account of such an event describes a charge laid against him by a farmer for attacking his daughter. Charteris is sent information of the complaint by the magistrate as “a Favour usually granted to Gentlemen of any Distinction,” so he can resolve the matter. This he does, at a price of several hundred pounds—shared by the victim and the magistrate. See The History of Colonel Francis Ch-rtr-s, 23 (see Appendix for full reference).
37.ï¿½Scotch Gallantry Display’d, 21.
38.ï¿½ English Jacobite troops occupied his home in northern England briefly in the 1715 Rebellion, but did no damage to it. One Jacobite officer in this campaign noted that, had it been Scottish Jacobite soldiers, his house would have been burnt—not because of his continued loyalty to King George, but “on account of his own personal Character, which is known not to have been very acceptable to those who are acquainted with him.” Robert Patten, The History of the Rebellion in the Year 1715. With Original Papers, and the Characters of the Principal Noblemen and Gentlemen Concerned in It, 3rd ed. (London: J. Roberts, 1745), 74.
39.ï¿½ In a letter to Pope in this year, Swift referred to the male population of Dublin in observing: “here we have … a race of young wicked Dunces and Atheists, or old Villains and Monsters, whereof four-fifths are more wicked and stupid than Chartres.” Alexander Pope, The Correspondence of Alexander Pope, ed. George Sherburn, 5 vols. (Oxford: The Clarendon Press, 1956), 4: 12–13. See also Swift, The Correspondence, 4: 477. The activities of violent gangs of aristocratic thugs in this period are well documented. For a description of “The Mohocks,” one of the nastier of these, see The Spectator, 12 March 1712.
40.ï¿½ For a discussion of this case, see Wallace Shugg, “The Baron and the Milliner: Lord Baltimore’s Rape Trial as Mirror of Class Tensions in Mid-Georgian London,” Maryland Historical Magazine 83 (1988): 310–30.
41.ï¿½ Charteris’ many detractors have denigrated his service in this campaign. The evidence does, however, suggest that he served his king honorably, and with some small distinction. Patten, The History of the Rebellion, 71–72; Paul de Rapin-Thoyras, The History of England, trans. N. Tindal (London: Knapton, 1726–47), 26: 164–65. This must have been taken into account by the Privy Council in considering his application for reprieve.
42.ï¿½ Chancellor, Col. Charteris, 111–13.
43.ï¿½ Stanhope, Letters, 2: 315.
44.ï¿½ Bolingbroke’s comment that Charteris was “envied by many,” presumably for his wealth, underscores the subversive nature of venality which is both public and successful. Henry Saint-John, Viscount Bolingbroke, The Works of Lord Bolingbroke. With a Life …, 4 vol. (Philadelphia: Carey and Hart, 1841), 4: 384. Charteris’ popularity cannot have been helped by the fact that he was one of the few astute enough to make money out of the collapse of the South Sea Bubble. Chancellor, Col. Charteris, 73–76.
45.ï¿½ In this year, Erasmus Lewis referred to him as one of Walpole’s “runners,” employed to hound the minister’s enemies in various ways. In 1730, Swift called him “that continuall favorite of Ministers.” Swift, Correspondence, 2: 116 and 3: 405.
46.ï¿½ For discussion of Pope’s concerns in this regard, see Donald B. Clark, Alexander Pope (New York: Twayne, 1967); Maynard Mack, The Garden and the City; Retirement and Politics in the Later Poetry of Pope, 1731–1743 (Toronto: University of Toronto Press, 1969). On the rise of the “new men” of finance and politics, see Peter G. M. Dickson, The Financial Revolution in England: A Study in the Development of Public Credit, 1688–1756 (London: Macmillan, 1967).
47.ï¿½ “On Colonel Francisco”; Mack, The Garden and the City, 183.
48.ï¿½ Quoted by Mack, The Garden and the City, 184n. In fact, Walpole was rewarded to some small extent by Charteris at the time of the pardon. He was certainly a beneficiary in Charteris’ will. See note 24.
49.ï¿½ Goldgar, Walpole and the Wits, 107–8. The “Epitaph” was reportedly written by John Arbuthnot. An interesting feature of this well-known poem is that, although sparing of neither of its two subjects, it concedes Charteris’ innocence of the crime against Ann Bond (see lines 27–30). The less well-known ballad, “On Colonel Don Francisco,” is also primarily concerned with Walpole, but incidentally implies that Charteris’ attack on Bond was not a rape (see verse six).
50.ï¿½ A ballad stating this in explicit and uncomplimentary terms was published in 1730 (“On Colonel Francisco”). It was one of many published examples of this perception.
51.ï¿½ Here I am talking of public perceptions of the mechanics of Charteris’ reprieve. The facts of the matter may be somewhat kinder to Walpole. The Earl of Wemyss, Charteris’ son-in-law and probably unwilling champion, was the head of a powerful Scottish family which was not then inclined to the house of Hanover. Fraser, Memorials, 1: 350. Given the politics of the times, and the location of Charteris’ prosecution exactly midway between the Rebellions of 1715 and 1745, it is possible that Walpole saw a good opportunity for an important alliance. Walpole was obsessed with Jacobitism and a hatred for Roman Catholics and those who allied with them. He was, however, always ready to intrigue with these traditional enemies. J. H. Plumb, Sir Robert Walpole, 2 vols. (Boston: Houghton Mifflin, 1961), 2: 15.
52.ï¿½ Plumb, Sir Robert Walpole, 2: 200–32.
53.ï¿½ Antony E. Simpson, “Masculinity and Control: The Prosecution of Sex Offenses in Eighteenth-Century London” (Ph.D. dissertation, New York University, 1984); “The ‘Blackmail Myth’ and the Prosecution of Rape and Its Attempt in 18th Century London: The Creation of a Legal Tradition,” Journal of Criminal Law and Criminology 77 (1986): 101–50; “Vulnerability and the Age of Female Consent: Legal Innovation and Its Effect on Prosecutions for Rape in Eighteenth-Century London,” in Rousseau and Porter, Sexual Underworlds, 181–205. These accounts provide further documentation of the discussion which follows.
54.ï¿½ Published trial reports and other forms of criminal biography were very widely read at this time. Their readership ranged across the social spectrum, but their biggest audience was the “middling” classes. Lincoln B. Faller, Turned to Account: The Forms and Functions of Criminal Biography in Late Seventeenth and Early Eighteenth-Century England (Cambridge: Cambridge University Press, 1987), 203–8.
55.ï¿½ Giacomo C. Casanova, Chevalier de Seingalt, History of My Life, trans. Willard R. Trask, 12 vols. (New York: Harcourt Brace Jovanovich, 1966–71; orig. 1826–38), 9: 295.
56.ï¿½ Doris Graber, for example, demonstrates that the news media in the modern world distorts the actual patterns of crime in their reporting, and that the population’s conceptions of these are to a large extent molded by media sources (Crime News and the Public [New York: Praeger, 1980]). Peter King’s analysis is one of several suggesting that the eighteenth-century English press came to assume importance “in shaping public perceptions of, and reactions to, particular forms of crime or social unrest” (“Newspaper Reporting, Prosecution Practice and Perceptions of Urban Crime: The Colchester Crime Wave of 1765,” Continuity and Change 2 ): 423.
57.ï¿½ By definition, “popular trials” command a great deal of media attention. However, they must also “offer a ‘performance’ of the laws, (and) enact social knowledge in several senses: The trial is a recognized social practice; it is constituted by social agreements … it presents and authorizes particular beliefs (and) finally, the popular trial observes specific rhetorical constraints, including (but not limited to) the adversarial format, reliance upon official symbols, the formal closure of a decision, and emphasis upon characterization” (Robert Hariman, “Introduction,” in Popular Trials: Rhetoric, Mass Media, and the Law, ed. Robert Hariman [Tuscaloosa: University of Alabama Press, 1990], 12).
58.ï¿½ The temporal and other limitations of the Old Bailey Proceedings are discussed in the various works of John Langbein. Primary and secondary sources documenting availability and use of court records from the sixteenth, seventeenth, and eighteenth centuries are discussed in Louis Knafla’s excellent bibliography, “Crime and Justice: A Critical Bibliography,” in Cockburn, Crime in England, 270–98 and 352–53. For discussion of other sources of publications documenting crime and the criminal courts in this period, see Gerald Howson, Thief-Taker General: The Rise and Fall of Jonathan Wild (New York: St. Martin’s Press, 1970), 317–27; Linebaugh, “The Ordinary.”
59.ï¿½ A determination of defendant occupations can be made in 141 of the 280 cases. Fifteen of them, less than ten percent, were of genteel status. A further thirty-three were servants of one kind or another. The remainder included men of a variety of working-class and “middling” occupations. Charteris, at fifty-six years of age, was also probably a good deal older than most men charged with this crime.
60.ï¿½ No financial assistance to prosecutors was allowed for in law until 1752—and precious little given even then. Beattie, Crime and the Courts, 41–48.
61.ï¿½ The minimum expenditure required would seem to have been around two pounds; see, for example, R. v Dowling and Cove, Old Bailey Proceedings (hereafter OBP), sessions beginning 10 April 1771. (In future OBP references, dates given can be assumed to be “sessions beginning,” unless otherwise indicated.) Beattie has assessed typical costs of bringing a prosecution of an assault or felony at between 10s. and one pound. In addition to this sum, the prosecutor would have to pay the costs of witnesses’ expenses and, perhaps, fees to a barrister and/or solicitor. Crime and the Courts, 41–48.
62.ï¿½ For discussion of the justice of the peace as mediator, see Peter King, Crime, Justice, and Discretion in England, 1740–1820 (Oxford: Oxford University Press, 2000), especially 89–93; Ruth Paley, ed., Justice in Eighteenth-Century Hackney: The Justicing Notebook of Henry Norris and the Hackney Petty Sessions Book (London: London Record Office, 1991), xxxi–ii; Robert B. Shoemaker, Prosecution and Punishment: Petty Crime and the Law in London and Rural Middlesex, c. 1660–1725 (Cambridge: Cambridge University Press, 1991), 81–94 and 101–16.
63.ï¿½ After convictions for indictable “Assaults, Woundings, and false Imprisonments … it is not unusual to recommend to the offender, before judgement, to make pecuniary satisfaction to the party injured; who thereupon releases his right to civil action, and the punishment by the court is moderated accordingly” (Sir William Eden, Principles of Penal Law, 2nd ed. [London: White and Cadell, 1771], 257–58).
64.ï¿½ For examples, see Beattie, Crime and the Courts, 128–29; Roy Porter, “Rape—Does It Have Historical Meaning?” in Rape, ed. Sylvana Tomaselli and Roy Porter (Oxford: Black-well, 1986), 217; Shoemaker, Prosecution and Punishment, 89; Randolph Trumbach, Sex and the Gender Revolution: Heterosexuality and the Third Gender in Enlightenment London (Chicago: University of Chicago Press, 1998), 29.
65.ï¿½The Life of Don Francisco, 47; Some Authentick Memoirs, 1–2 (see Appendix for full reference).
66.ï¿½ A Swiss visitor to London in the 1720s noted the prevalence of court cases based on perjured testimony, and attributed this to the leniency of the law toward this kind of crime. De Saussure, A Foreign View of England, 338–39. A French visitor made similar observations fifty years later. Pierre J. de Grosley, A Tour to London: Or, New Observations on England and Its Inhabitants, trans. Thomas Nugent, 3 vols. (Dublin: J. Exshaw, 1774), 3: 34.
67.ï¿½ See generally Douglas Hay, “Prosecution and Power: Malicious Prosecution in the English Courts, 1750–1850,” in Policing and Prosecution in Britain 1750, ed. Douglas Hay and Francis Snyder (Oxford: The Clarendon Press, 1989), 343–95, especially 377–78; Beattie, Crime and the Courts, 125–26. Julie Gammon remarks on the prevalence of accusations of malicious prosecution even in rape cases where the victims were children (“‘A Denial of Innocence’: Female Juvenile Victims of Rape and the English Legal System in the Eighteenth Century,” in Childhood in Question: Children, Parents and the State, ed. Anthony Fletcher and Stephen Hussey [Manchester: Manchester University Press, 1999], 75–76).
68.ï¿½ Laurie Edelstein, “An Accusation Easily Made? Rape and Malicious Prosecution in Eighteenth-Century England,” American Journal of Legal History 42 (1998): 378–79; Clive Emsley, Crime and Society in England, 1750–1900, 2nd ed. (London: Longmans, 1996), 44. For a discussion placing sexual assault within the framework of the violent nature of working-class courtship, see Trumbach, Sex and the Gender Revolution, 301–5.
69.ï¿½ Susan Staves, “British Seduced Maidens,” Eighteenth Century Studies 14 (1980/81):109–34; Peter Wagner, “The Pornographer in the Courtroom: Trial Reports About Cases of Sexual Crimes and Delinquencies as a Genre of Eighteenth-Century Erotica,” in Sexuality in Eighteenth-Century Britain ed. Paul-Gabriel Boucé (Manchester: Manchester University Press, 1982), 120–40.
70.ï¿½ Staves, “British Seduced Maidens,” 130.
71.ï¿½ Laura Gowing, “Language, Power, and the Law: Women’s Slander Litigation in Early Modern England,” in Women, Crime, and the Courts in Early Modern England, ed. Jenny Kermode and Garthine Walker (Chapel Hill: University of North Carolina Press, 1995), 26–47; Trumbach, Sex and the Gender Revolution, 23–49.
72.ï¿½ Modern surveys indicate that a large proportion of rape victims are attacked by men known to them. One of the more extensive studies of this kind suggests this circumstance to be by far the commonest scenario for rape. Diana E. H. Russell, Rape in Marriage (New York: Collier, 1982), 64–68.
73.ï¿½ This scenario is supported by the findings of other studies. Anna K. Clark, Women’s Silence, Men’s Violence: Sexual Assault in England, 1770–1845 (London: Pluto Press, 1987), 104–9; Harvey, Sex in Georgian England, 81–84; Tim Hitchcock, English Sexualities 1700–1800 (New York: St. Martin’s Press, 1997), 108; Sara Mendelson and Patricia Crawford, Women in Early Modern England, 1550–1720 (Oxford: Oxford University Press, 1998), 106–7. Trumbach, on the basis of an examination of hospital records, believes that domestic servants were at an even higher risk from members of their households than has been supposed. Sex and the Gender Revolution, 301–22.
74.ï¿½ A detailed analysis of how this estimate was arrived at is included in Simpson “Vulnerability.” Trumbach confirms this finding dramatically. Sex and the Gender Revolution, 211–25. Beattie notes that of twelve rape prosecutions documented in the printed records of the Surrey courts, five involved child victims. Crime and the Courts, 127. This great tendency of rapists to victimize children has been attributed, not to pedophilia, but to the prevalence of a folk belief that sex with an innocent provided a cure for venereal disease. Gammon, “‘A Denial of Innocence,'” 78–79; Simpson, “Vulnerability.”
75.ï¿½ Trumbach, Sex and the Gender Revolution, 23–45.
76.ï¿½ Sir William Blackstone considered one of the basic rights of an individual to be “The security of his reputation or good name from the arts of detractions or slander.” Commentaries on the Laws of England, 4 vols. (Oxford: The Clarendon Press, 1765–69), 1: 134. He further comments upon the increasing severity with which unwarranted attacks on character had come to be regarded in law (3: 124).
77.ï¿½ De Saussure, writing in the 1720s, observed: “I wish you to understand that a prisoner’s reputation is of great value. If several persons take the oath and say that he has always been an honest man, his case will be considered in quite a different light to what it would have been had he been suspected on other occasions of villainy” (A Foreign View of England, 121). See also Langbein, “Shaping the Eighteenth-Century Criminal Trial.”
78.ï¿½ John H. Langbein, “The Criminal Trial Before the Lawyers,” University of Chicago Law Review 45 (1978): 305–7.
79.ï¿½ For a lengthy review of the courts’ persistent historical interest in the rape victim’s character, sexual history, and motives in filing the charge, see Vivian Berger, “Man’s Trial, Women’s Tribulation: Rape Cases in the Courtroom,” Columbia Law Review 77 (1977): 1–103. For an analysis of how legal interest in the victim’s sexual past has survived recent legislative attempts to limit it in present-day Britain, see Aileen McColgan, “Common Law and the Relevance of Sexual History Evidence,” Oxford Journal of Legal Studies 16 (1996): 275–307.
80.ï¿½ Of the 167 cases for which this factor was assessed, extortion was raised as an issue in fifty-seven: rather more than one-third of them.
81.ï¿½ See Simpson, “The ‘Blackmail Myth.'” My conclusion that the shadow of venality, unjustified though it generally was, hung over prosecutions for rape is generally supported by Edelstein, “An Accusation.” This account is, however, otherwise strongly critical of my analysis and the data on which it is based. These criticisms are in part based on a misreading of my argument. (Neither I nor anyone else claims “that women brought rape charges in criminal court solely for the purpose of ‘making up’ their injuries by negotiated financial settlement” [“An Accusation,” 379].) I believe that these criticisms are also informed by a lack of appreciation of just how little control a victim had over the disposition of her case, once she had reported the offense to a magistrate. At that point, the victim would have little say over whether her case was sent to a grand jury. See the following discussion.
82.ï¿½ See The Proceedings, 7. Acceptance of money or a gift was construed as tacit agreement that the injury had been compensated for, or otherwise forgiven. Such agreement meant that a later criminal prosecution or civil suit was unsupportable. Trumbach, Sex and the Gender Revolution, 234; Simpson, “The ‘Blackmail Myth.'” For a statement of this rule, see note 63.
83.ï¿½ Langbein, Prosecuting Crime, 7–125.
84.ï¿½ Simpson, “The ‘Blackmail Myth,'” 122–23.
85.ï¿½ In 1745, eighty-one cases were dealt with summarily at quarter sessions; seventy-three went to jury trial. In 1746, the numbers were thirty-four and sixty-seven. See Corporation of London. Sessions Minute-Books, (hereafter LSMB), January 1740 through October 1767. LMA CLRO SM 107–34.
86.ï¿½ This is supported by Paley’s finding that about 80 percent of cases coming before magistrates were either adjudicated at this point or dismissed (Justice in Eighteenth-Century Hackney, xvii). Most of these would, of course, have been for crimes less serious than sexual assault. Complainants who resisted this exercise of magisterial authority were likely to be penalized by being bound over in high recognizances (xxxi–xxxii). For detailed discussion of the passage of rape cases through the courts, see Simpson, “Masculinity,” 204–311.
87.ï¿½ Simpson, “Masculinity,” 837.
88.ï¿½ The only case I have identified in which a complainant bypassed the magistrates and was granted a “true bill” by the grand jury resulted in an acquittal at trial. R. v Cogdell, LSMB, June 1753.
89.ï¿½Fog’s Weekly Journal, 28 December 1728.
90.ï¿½ Edelstein discusses a willingness to be exposed to this ordeal as evidence of the integrity of purpose of rape complainants. She writes as though a capital trial for rape was the usual outcome of such a complaint and seems unaware that the great majority of such cases were adjudicated or otherwise resolved long before this point (“An Accusation”).
91.ï¿½ It is always hard to second-guess jury verdicts, but such absence of direct testimony was evidently a factor in the acquittals brought in R. v Rowson, OBP, 25 February 1730, 16–17; R. v Pearson (alias York), OBP, 6 December 1732, 23–24, no. 80; R. v Slade, OBP, 11 September 1734, 174, no. 6. It may have been a factor in those cases in which child testimony was refused, but without published comment: R. v Cherry, OBP, 16 January 1730, 23; R. v Gray, OBP, 11 July 1735, 128, no. 60; R. v Brown, OBP, 15 October 1735, 161–62, no. 35. In these six cases, the ages of the alleged victims ranged between six and eleven years.
92.ï¿½ In a standard scenario for the time, the case involved a nine-year-old raped by an employee of her father. The crime came to light when the child was found to have contracted venereal disease. R. v Cannon, OBP, 12 September 1733, 197–98, no. 72; GM, 3 (Sep-tember 1733): 493 and 3 (October 1733): 548.
93.ï¿½ R. v Collier, OBP, 14 October 1730, 10–11; R. v Reytown, OBP, 4 December 1730, 9; R. v Ellis, OBP, 8 December 1731, 22–24; R. v C— J—, OBP, 10 July 1734, 161–65, no. 39.
94.ï¿½ R. v Tugwell, Matthews, and Whitney, OBP, 11 September 1735, 150–52, nos. 65, 66, and 67; GM, 5 (September 1735): 558.
95.ï¿½ R. v Blackwell, OBP, 24 October 1735; GM, 5 (October 1735): 618 and 5 (Novem-ber 1735): 680; R. v Gregory, OBP, 5 February 1735:106 and 5 (May 1735): 274. At his execution, Gregory “feigned a Laugh even at the last Moment.” GM, 5 (June 1735): 330. For a detailed history of the careers of Gregory and Turpin, see Derek Barlow, Dick Turpin and the Gregory Gang (London: Phillimore, 1973). Accounts of the rape and Gregory’s trial for it are included in pages 85–92 and 199–209 of this source.
96.ï¿½ One contemporary opinion tells us that convicted burglars and highway robbers were almost always “hanged without mercy” at this time. De Saussure, A Foreign View of England, 128 and 130–31. However, for capital offenders as a whole, prospects of reprieve were much brighter. Between 1701 and 1725, only 156 of the 471 people (33 percent) capitally convicted in the Old Bailey were executed. Forty-two percent of qualified candidates were executed between 1726 and 1750. In the second half of the century, the number of executions resulting from convictions in this court rose five-fold, although executions actually fell as a proportion of those capitally convicted. V. A. C. Gatrell, The Hanging Tree: Execution and the English People, 1770–1868 (Oxford: Oxford University Press, 1994), 7 and 616.
97.ï¿½ See the discussion in Parliamentary Debates, 3rd series, 57 (1841): 47–58.
98.ï¿½ See, for example, R. v C— J—, OBP, 10 July 1734, 161–65, no. 39; R. v Brown, OBP, 15 October 1735, 161–62, no. 35. See also Simpson, “Vulnerability.” A similar finding for Surrey is documented in Beattie, Crime and the Courts, 129–32, and for London in the early nineteenth century by Harvey, Sex in Georgian England, 77.
99.ï¿½ See Simpson, “Masculinity,” 214–19. When the victim was a child, a change in the charge was not necessarily thought suspicious. For example, R. v Nugent, OBP, 12 September 1798; The Times, 16 August, 19 September, and 29 November 1798. Nugent was convicted and hanged. A very celebrated case involving a schoolmaster who had abused three of his pupils was initially charged as attempted rape but was upgraded by the magistrate. The culprit was convicted and hanged. R. v Russen, OBP, 15 October 1777; The Gazetteer, 13 and 20 October 1777; Morning Post, 9, 11, and 20 December 1777. However, Ann Bond was an adult and the upgrading of her charge would normally have been regarded in a more critical light.
100.ï¿½ He advised going to the Court of Quarter Sessions, which was not empowered to hear capital felonies, because: “it was near, and he thought that would be the best way” (Mountague, The Old Bailey Chronicle, 2: 98).
101.ï¿½ Modern research suggests that, in the middle of the century at least, such decisions were generally made on a rational basis. King, Crime, Justice, and Discretion, 296–333; Langbein, “Shaping the Eighteenth-Century Criminal Trial.” This finding tells us little about how decisions based on reason could be circumvented. One well-documented case of a gentleman prosecuted for rape some years before Charteris shows that extortion, bribery, and the appeals process could be linked. Hugh Leeson, The Case of Capt. Leeson, Etc … (London: J. Roberts, 1715). For a broad discussion of the venality of the criminal justice system in this period, see Howson, Thief-Taker General.
102.ï¿½ Simpson, “Masculinity,” 293.
103.ï¿½ R. v Sullivan, Caswell, and Fitzgerald, OBP, sessions ending 17 July 1762; R. v M—L—, heard in the Old Bailey, March 1720. Cited in Edelstein, “An Accusation,” 372n.
104.ï¿½ See Hay, “Prosecution and Power,” especially 371–77. In explaining this phenomenon, Hay invokes Sir James Stephen’s maxim that “the criminal law stands to the passion of revenge in much the same relation as marriage to the sexual appetite” (345).
105.ï¿½ See Langbein, “The Criminal Trial.” Most capital trials lasted only a few minutes. A trial lasting several hours was “a matter for comment” (Beattie, Crime and the Courts, 376). My impression, based on the detail of reporting in the OBP in this period, was that rape cases lasted much longer than most.
106.ï¿½ Beattie notes that only “a handful” of prisoners had counsel in the 1730s and thatcounsel for the prosecution was even less common (Crime and the Courts, 223–28). In the 1830s, 95 percent of cases heard in the Old Bailey lacked a prosecution counsel because the court refused to pay the costs. See Allyson N. May, “Reluctant Advocates: The Legal Profession and the Prisoner’s Counsel Act of 1836,” in Criminal Justice in the Old World and the New: Essays in Honour of J. M. Beattie, ed. Greg T. Smith, Allyson N. May, and Simon Devereaux (Toronto: University of Toronto, Centre of Criminology, 1998), 198.
107.ï¿½ From the 1730s at least, defense counsel was allowed to examine and cross-examine witnesses and address the court on points of law. He could not present the case or otherwise address the jury (J. M. Beattie, “Scales of Justice: Defense Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries,”Law and History Review 9 : 221–67). Willingness of the courts to bend the rules for defendants in this way has been attributed to two factors: fear of prosecutions mounted for the purpose of obtaining rewards and the increased involvement of prosecutions presented by barristers and prepared by solicitors. John H. Langbein, “The Prosecutorial Origins of Defence Counsel in the Eighteenth Century: The Appearance of Solicitors,” Cambridge Law Journal 58 (1999): 314–65. However, presence of defense counsel was by no means the rule. The unusual circumstance of the Charteris defense is illustrated by Beattie’s comment that as late as 1800, seven out of ten defendants in the Old Bailey had no counsel. Crime and the Courts, 375–76.
108.ï¿½ Sir William Hawkins, A Treatise of the Pleas of the Crown, 2 vols. (London: J. Walthoe, 1716–21), 2: 87; Beattie, Crime and the Courts, 281–83. At the trial of Captain Leeson for rape, the committing justice testified that he never believed the allegations of the prosecutrix. However, he felt that the capital nature of the charge gave him no option but to deny bail and commit. Leeson was convicted but later pardoned. Leeson, The Case.
109.ï¿½ Hawkins, A Treatise, 2: 87.
110.ï¿½ Simpson, “Masculinity,” 235.
111.ï¿½ For her testimony, see Select Trials (1742), 3: 198. Simpson cites several examples of verbal courtroom abuse of rape complainants and includes a detailed verbatim account of one witness examination, taken from R. v Curtis, OBP, sessions ending 20 February 1793 (“The ‘Blackmail Myth,'” especially 131–32).
112.ï¿½ Simpson, “The ‘Blackmail Myth.'”
113.ï¿½ Stephan Landsman, “One Hundred Years of Rectitude: Medical Witnesses at the Old Bailey,”Law and History Review 16 (1998): 445–94.
114.ï¿½ They were used to determine whether women accused of infanticide had in fact recently given birth, and they were also used in civil cases. James C. Oldham, “On Pleading the Belly: A History of the Jury of Matrons,” Criminal Justice History 6 (1985): 1–64. Midwives as well as doctors were used in this way. However, I have found only one example of a panel of matrons being used in the Old Bailey to examine rape complainants: R. v Weston, heard in the Old Bailey December 1721 (Select Trials [1734/35], 1: 97–98).
115.ï¿½ See, for example, R. v Purse, OBP, 10 May 1780.
116.ï¿½ Of the twenty-eight successful prosecutions in the Old Bailey for which it is possible to assess this factor, twenty-six included medical evidence presented by the prosecution. Relevant comments on both the importance of medical testimony and its inconclusive nature in such cases are included in Gammon, “‘A Denial of Innocence,'” 85.
117.ï¿½ Simpson, “Masculinity,” 168–84 and 197–99.
118.ï¿½ R. v Green, OBP, sessions ending 13 May 1769.
119.ï¿½ For a full discussion of the bizarre dimensions of this case, see Simpson, “Vulnerability.”
120.ï¿½ Jan Bondeson, The London Monster: A Sanguinary Tale (Philadelphia: University of Pennsylvania Press, 2000).
121.ï¿½ Lisa Cuklanz, Rape on Trial: How the Mass Media Construct Legal Reform and Social Change (Philadelphia: University of Pennsylvania Press, 1996), 7.
122.ï¿½ Jeremy Black, The English Press in the Eighteenth Century (Philadelphia: University of Pennsylvania Press, 1987), 104–8; Harvey J. Graff, The Legacies of Literacy: Continuities and Contradictions in Western Culture and Society (Bloomington: Indiana University Press, 1987), 230–48.
123.ï¿½ Faller, Turned to Account, 207; Cynthia B. Herrup, A House in Gross Disorder: Sex, Law, and the 2nd Earl of Castlehaven (New York: Oxford University Press, 1999), 134.
124.ï¿½ Hay makes general comments on the value of the press in inculcating respect for the law and its institutions. “Property.” Roger Wells documents the expressed policy of newspapers in limiting coverage of riots for what they saw as the public interest. “Counting Riots in Eighteenth-Century England,” Bulletin of the Society for the Study of Labour History no. 137 (Autumn 1978): 68–72. See also King, “Newspaper Reporting.”
125.ï¿½ Beattie, Crime and the Courts, 129–32.
126.ï¿½ A conviction for attempted rape was warranted if a capital charge was unsuitable due to some “defect of evidence as to the completion of the offence … yet if in all other respects the injury be satisfactorily proved, it must … be considered to be full as aggravated as that which in the strictest notion of law is denominated rape” (Edward H. East, A Treatise of the Pleas of the Crown, 2 vols. [London: Butterworth, 1803], 1: 440). A case in which all the elements of rape, including emissio seminis, were demonstrated could, depending on the court, be considered as attempted rape if penetratio in re itself was not considered to have been proven. Sir Matthew Hale, Historia Placitorum Coronae. The History of the Pleas of the Crown, new ed. By Sollom Emlyn and George Wilson, 2 vols. (London: T. Payne, 1800), 1: 627.
127.ï¿½ Edelstein, “An Accusation,” 378. Susan Staves recognizes the severity of this offense in her analysis of Henry Fielding’s frequent and light-hearted references to “attempted rapes” in his novels. Staves correctly notes that these fictional events never come to the courts because they do not approach the level of severity the law used to define this crime. “Fielding and the Comedy of Attempted Rape,” in History, Gender, and Eighteenth-Century Literature, ed. Beth F. Tobin (Athens: University of Georgia Press, 1994), 86–112.
128.ï¿½ It stands in stark contrast to the parallel crime of “assault with intent to commit sodomy.” This last was used very broadly to penalize unacceptable public behavior of a homosexual nature. Cases of it rarely involved violence and did not usually address sincere attempts to commit the capital crime. Behavior prosecuted in this way usually involved propositioning or consensual activity. On conviction, this misdemeanor was punished at least as severely as attempted rape, although it was largely defined in practice as a public order offense. In the City of London at least, it was prosecuted far more often than attempted rape and conviction rates were much higher. Simpson, “Masculinity,” 427–508.
129.ï¿½ See, for example, R. v Larkin, OBP, sessions ending 6 July 1751; LSMB, September 1751; R. v Price, OBP, sessions ending 7 June 1764; LSMB, July 1764; R. v Freelove, OBP, sessions ending 13 July 1774; LSMB, October 1774.
130.ï¿½ This rule was embedded in the law in Harmswood’s Case, heard at Winchester Spring Assizes in 1787. East, A Treatise, 1: 440. See also R. v Fyson, OBP, sessions ending 25 June 1788.
131.ï¿½ Simpson, “Masculinity,” 114–62; “Vulnerability.”
132.ï¿½ After stating the principle that a criminal trial may result in a conviction for a lesser offense, Joseph Chitty notes that: “The only exception to this rule seems to be, where the prisoner by being originally indicted for a different offence, would be deprived of any advantage which he would otherwise be entitled to claim; in which case the prosecutor is not permitted to oppress the defendant by altering the mode of proceedings. A defendant, therefore, cannot be found guilty of a misdemeanour on an indictment for felony, because he would by that means lose the benefit of having a copy of the indictment, a special jury, and of making his full defence by counsel” (A Practical Treatise on the Criminal Law…, 4 vols. [London: A. J. Valpy, Chitty 1816], 2: 638–69).
133.ï¿½ This was formally established in an arson case, R. v Doran, heard in the Old Bailey in 1790. Thomas Leach, Cases in Crown Law: Determined by the Twelve Judges by the Court of King’s Bench: and by Commissioners of Oyer and Terminer, and General Gaol Delivery…, 3rd ed., 2 vols. (London: J. Butterworth, 1800), 2: 608–9.
134.ï¿½ See Hawkins, A Treatise, 2: 440.
135.ï¿½ I have found only two instances of dual prosecutions of this kind. Unsuccessful prosecutions of alleged rapists on both felony and misdemeanor counts at the same time were brought in 1742 and 1748. R. v Thompson, OBP, 15 January 1742; R. v Osborne, OBP, 12 December 1748. The rule persisted until passage of the Prisoners Counsel Act of 1836. Enactment of this statute is analyzed by David Cairns who, surprisingly, does not address its effect in this rationalizing of the rights of accused felons and misdemeanants. See Advocacy and the Making of the Adversarial Criminal Trial, 1800–1865 (Oxford: The Clarendon Press, 1998).
136.ï¿½ For example, Beattie, Crime and the Courts, 401–49.
137.ï¿½ Beattie notes the absence of partial verdicts in rape cases but offers no comment on this (Crime and the Courts, 439–49). The one discussion I have found which addresses this important trial rule in the context of rape prosecutions (in response to some remarks of my own) unaccountably denies its existence (Edelstein, “An Accusation,” 361).
138.ï¿½ In Surrey, eighteen cases of rape and 33 of attempted rape were brought between 1660 and 1800. Conviction rates were about 15 percent and 64 percent respectively. Forty percent of the convicted rapists were hanged. All convicted on the lesser charge were presumably punished (Beattie, Crime and the Courts, 411 and 433). In the Old Bailey between 1730 and 1790, 183 rape prosecutions were brought and 31 capital convictions obtained (17 percent). Fourteen of the thirty-one were hanged (see Table 1). In the Old Bailey and the City of London Quarter Sessions, which together heard but a small fraction of cases of attempted rape coming before trial juries in Metropolitan London, forty-one such cases were heard and twenty-one defendants convicted (Simpson, “Masculinity,” 819–22).
139.ï¿½ At Kingston Assizes, William Fielder, who was obviously convicted of the misdemeanor, was reported to have been sentenced to one year’s imprisonment “for ravishing his master’s daughter” (Morning Post, 10 April 1777).
140.ï¿½ Herrup, A House in Gross Disorder, 115–54.
141.ï¿½ See, for example, Shugg, “The Baron and the Milliner,” 314.
142.ï¿½ See Nazife Bashar, “Rape in England Between 1550 and 1770,” in The Sexual Dynamics of History: Men’s Power, Women’s Resistance, ed. The London Feminist History Group (London: Pluto Press, 1983), 28–42; Beattie, Crime and the Courts, 124–32. Outside of London there was, between the fourteenth and eighteenth centuries, “a virtual absence of such … felonies as rape.” J. A. Sharpe, Crime in Seventeenth-Century England: A County Study (Cambridge: Cambridge University Press, 1983), 170.
143.ï¿½ Bashar sees the late seventeenth century as the beginning of a period when the crime came to be seen more of an affront to the person than to men’s property rights. She notes the statutory distinction between the crimes of rape and abduction as a crucial indicator of this (“Rape in England”). Simpson emphasizes an emerging ethos of masculinity and related sexual aggression as initially working-class phenomena associated with falling economic status (“Masculinity”). Anna Clark, whose concerns are for a rather later period, views sexual violence more functionally as a social instrument for inhibiting women’s freedom outside of the home (Women’s Silence). John Beattie associates a growing number of rape prosecutions with decreasing public tolerance for violence in general, and not to any increase in the prevalence of this crime (Crime and the Courts, 130–32). One interesting recent discussion views unequal opportunities for the exercise of sexual license by working-class men and women as a source of violent and preromantic relations. Trumbach’s thesis, based largely on analysis of parish and hospital records dealing with illegitimacy, argues that, among the lower classes, sexual violence could be accommodated within the courting process. For “many of the men and some of the women, marriage was a possible conclusion to a relationship that had begun in rape. Rape was a part of the continuum of courtship” (Sex and the Gender Revolution, 234; see generally, 229–322). For a supporting view, see Gatrell, The Hanging Tree, 447–93. For a very different interpretation of the relationship between sexual violence and courtship, see Edelstein, “An Accusation,” especially 382–84.
Primary Sources Documenting the Trial of Francis Charteris
The Bloody Register; A Select and Judicious Collection of the Most Remarkable Trials…. From the Year 1700 to the Year 1764 Inclusive. London, 1764. 4 vols. 3: 69–87.
“Epitaph on Don Francisco. “London Magazine 1 (April 1732): 39. Attributed to John Arbuthnot, physician, political writer, and friend of Gay, Pope, and Swift. DNB, 1: 534–37.
The History of Colonel Francis Ch-rtr-s. Containing the Birth, Parentage, Rise, Progress and Most Remarkable Exploits of That Great Man, Down to His Present Catastrophe in Newgate…. 4th ed. London, 1730. 47 pp.
Knapp, Andrew and William Baldwin, eds. The New Newgate Calendar. London: J. and J. Cundee, 1819. 5 vols. 1: 430–35.
The Life of Don Francisco. Containing the Whole Series of the Most Remarkable and Unprecedented Actions from his Birth to the Time of his Receiving his Sentence of Death for a Rape. London, 1730. 55 pp.
The Malefactor’s Register: Or, the Newgate and Tyburn Calendar. London: Alexander Hogg, 1779. 5 vols. 2: 209–18.
Mountague, James. The Old Bailey Chronicle; Containing a Circumstantial Account of the Lives, Trials and Confessions of the Most Notorious Offenders…. London: Thomas Skinner, 1788. 4 vols. 2: 92–108.
“On Colonel Francisco; Rape-Master General of Great Britain.” In Political Ballads Illustrating the Administration of Sir Robert Walpole. Ed. Milton Percival. Oxford: The Clarendon Press, 1916, orig. 1730. 34–36.
The Proceedings at the Sessions of the Peace, and Oyer and Terminer, for the City of London, and the Country of Middlesex … Upon a Bill of Indictment Against Francis Charteris, Esq: For Committing a Rape Upon the Body of Anne Bond. Of Which He was found Guilty. London: T. Payne, 1730. 20 pp.
Rex v Charteris. Old Bailey Proceedings. sessions beginning 25 February 1730. 17.
Scotch Gallantry Display’d: Or the Life and Adventures of the Unparralel’d Col. Fr-nc-s Ch-rt—s. Impartially Related. With Some Remarks on Other Writers on this Subject. London, 1730. 36 pp. Attributed to Thomas Woolston, freethinking cleric and sometime friend of Charteris. DNB, 21: 908–910.
Select Trials at the Sessions-House in the Old Bailey, for Murders, Robberies, Rapes, Sodomy, Coining, Frauds, Bigamy, and Other Offences … From the Year 1720 to 1732 … Inclusive. London: J. Wilford, 1734–35. 2 vols. 2: 339–51.
Select Trials at the Session-House of the Old Bailey, for Murders, Robberies, Rape, Sodomy, Coining, Frauds, Bigamy, and Other Offences … From the year 1720 to this Time. London: J. Applebee, 1742. 4 vols. 3: 196–208.
Some Authentick Memoirs of the Life of Colonel Ch——s, Rape-Master General of Great Britain. By an Impartial Hand. London, 1730. 62 pp.
The Tyburn Chronicle: Or, Villainy Displayed in All its Branches. London: J. Cooke, 1768. 4 vols. 2: 333–51.