gang crime

Why was crime increasing? Well, the evergreen answer is that it is in the king’s interest to criminalize whatever will increase court revenues. But there’s a particular historical answer for the era in question:

International military involvement served as a major impetus for the development of public prosecution and police during the eighteenth and nineteenth centuries (as well as prisons and other public institutions of criminal justice.) The economy — and particularly the London economy, because it was strongly influenced by government demand for war materials (or lack of demand, as employment often declined immediately after a war)[84] — could not quickly absorb the large influx of veterans following a war. Furthermore, according to many observers, the soldiers were “unaccustomed to ordinary labor and were unwilling to take it up again when they came home.”[85] Instead

the conclusions of wars in the eighteenth century brought “a great harvest of crime,” as was said in 1819. … The peace brought back to England large numbers of disreputable men who had spent several years being further brutalized by service in the armed forces, without any provision being made for the reentry into the work force. The same complaint was voiced after every war.[86]

The failure of the existing crime control apparatus was in part a function of the kinds of crime the returning veterans generally committed. They had had considerable on-the-job training in organized violence. [...] Large-scale gang crime was a new phenomenon, and it was this type of crime that proved to be the most difficult for the criminal justice system to handle. (p. 64)

[84] J.M. Beattie, Crime and the Courts in England, 1660–1800 (Oxford: Clarendon Press, 1986), p. 228.

[85] Ibid., p. 229.

[86] Ibid., p. 226.

juries: the lesser evil

More on the evolution of the jury:

By the mid-sixteenth century, familiarity with the crime was no longer required to be a jury member. Langbein suggested that “this transformation of the active medieval juries into passive courtroom triers is among the greatest mysteries of English legal history, still no better understood than [a century ago].”[99] But it is really no great mystery when we realize that the recognition of duty to perform law enforcement functions was originally built on restitution and reciprocity. Widespread criminalization under the Norman kings ultimately undermined even the king’s jury system. (pp. 66f)

In other words, the active medieval jury referred to on page 58 came out of the culture of tort (wrong against a person) rather than crime (wrong against “society,” the king, the state). In the more individualist tort context, it didn’t make sense to bring in strangers. In the more “societal” crime context, it did.

Furthermore,

In 1730 London, it was common to empanel two twelve-man juries to try all the roughly 150 felony cases in a session of Old Bailey (royal assizes typically empaneled a single jury that heard all cases). The juries’ sittings were staggered so that one could hear evidence on a series of cases while the other was out deliberating on other cases. Many cases lasted only a few minutes, with evidence presented, and little dispute. Most jurors were experienced, having served before, so judicial instruction of the jury was perfunctory. (p. 67)

In other words, transaction costs! The nature of juries changed as a result of increasing transaction costs, changed in such a way as would lower those costs. As “crime” was rising (see next post), and criminal courts were ever busier, it was faster and cheaper to reuse the same jury on multiple cases, basically eliminating the possibility that jury members would already be familiar with the facts of any particular case.

Finally:

Another factor leading to plea bargaining was the insistence on trial by jury rather than by judge. Recall that juries initially were resisted as they were used to expand the power of the kings, but distrust of judges also was substantial. In the context of the criminal law as it developed to assist the kings, mistrust for one of the king’s institutions, juries, was clearly not as great as mistrust for another, royal judges. Juries became widely viewed as the only potential safeguard against the further manipulation of law enforcement for the political and financial benefit of the kings. (p. 70)

[99] Langbein, “The Origins of Public Prosecution at Common Law,” p. 314. See also Thomas A. Green, Verdict According to Conscience: Perspectives on the English Criminal Trial Jury, 1200–1800 (Chicago: University of Chicago Press, 1985), p. 105.