The ‘habit and repute’ thief in Scottish law

A later 19th century thief (courtesy of Tyne & Wear Archives & Museums).

Daniel Morrison was just 17 years old, but he had a bad reputation.

He had started thieving young, and had already received convictions for theft and swindling. Now he was up again in court.

It was October 1817, Edinburgh.

Daniel was charged with two offences; the first, with obtaining money under false pretences. This was not unexpected. He would go to almost any length to get money from somewhere – stealing, cheating, whatever.

But the second charge? That was a bit different. He was accused of being a ‘habit and repute thief’. This was a charge under Scottish common law that took into account the temper and disposition of a person, and was an admittance of ‘bad character’.

You could not be charged with being a habit and repute a thief unless you were charged with another offence – excluding murder or assault – at the same time. You could not be found guilty of the former, unless you were found guilty of the latter.

This is not to say that the law was always followed to the letter. On occasion, a person had been found guilty of habit and repute, but acquitted of the other theft charge, and bound over to good behaviour.

But in short, Daniel was being written off by the system – still in his teens, but dismissed as being a criminal character who had little chance of repenting.

He was found guilty of being a ‘habit and repute thief’, the facts being ‘satisfactorily proven’. This meant that it was considered that he had a bad character, a bad name for theft specifically, and that other witnesses considered him a bad person.

Poor Daniel was sentenced to a 60 day spell in the local bridewell – and for thirty days of his sentence, he was ordered to only be fed on bread and water.

Sources: Caledonian Mercury, 23 October 1817; ‘A Treatise on various branches of the criminal law in Scotland’ by John Burnett (Archibald Constable, Edinburgh, 1811), pp.127-131

The Crime of Suicide

A woman diagnosed as suffering from melancholia with fear, or fear of everything, and with a propensity to attempt suicide (Wellcome Library, London)

Suicide was a crime in England and Wales until 1961 (when the Suicide Act was passed). Originally, it was a sin in religious terms, but from the 13^th century, it became a common law offence – one of ‘self-murder’ or felo de se.

A person could only be deemed to have committed this offence if they were sane; as time went on, inquests frequently determined that someone who had killed him or herself had done so while the balance of their mind was disturbed – thus suggesting that they were not to blame for their act.

Prior to 1822, a suicide victim’s possessions could be confiscated, a forfeit to the Crown, and thus his family could suffer financially as well as socially for an act not committed by themselves. Someone who killed themselves might also be denied a decent burial, being traditionally buried at a crossroads with a stake through their body.

In 1800, for example, Thomas Flynn, from Hammersmith, was found to have cut his throat, dividing his oesophagus and making it impossible for him to eat or drink. He survived for four days before succumbing to his injury.

An inquest was held the day after his death, where it was decided that he had ‘feloniously, wickedly, and of his malice aforethought, killed and murdered himself’ and the coroner ordered that he be buried ‘in some public highway’. [1]

But already, by this stage, attitudes were starting to change; and the perceptions of Flynn may have been influenced by knowledge – presented by witnesses at the inquest – that he was widely known to be a wife-beater and a generally violent man, who had tried to kill his wife before harming himself. Flynn’s ‘self-murder’ came at a time when public attitudes towards wife-beating were also hardening.

And in the late 18th century, people had started to publicly question whether suicide should be treated so harshly. As this website has detailed, David Hume wrote essays on suicide in the 1770s, and there was also a debate on whether suicide was an act of courage. Legal handbooks, however, still stressed that suicide was an act of the devil (see illustration below).

In Victorian England, attitudes varied. In 1871, Maria Norman, aged 50, was charged with attempting to commit suicide by taking a large amount of carbolic acid. She badly burned her mouth, lips and throat.

From Richard Burn’s The Justice of the Peace, and Parish Officer (1773)

She could have died – a doctor called to help her after she was discovered by her landlord refused to help, presumably because she did not have the money to pay him. But a local hospital physician gave her olive oil and glycerine to soothe her and she survived – only to be charged with a crime. [2] 

Yet five months later, a 45 year old labourer named William Atkins was charged with attempting to commit suicide by cutting his throat, at his home in Little Milton, Oxfordshire. He was taken to the county gaol, but when the magistrates were told they had to decide if he was sane, and that if he were, they would have to ‘send him for trial and he would be liable to severe punishment’, they decided they were ‘inclined to take a lenient view of the case’ – deciding he was not sane at the time, and therefore could be discharged. [3]

There was also sympathy for those impacted by suicide. In Oxfordshire, in 1873, an inquest jury clubbed together to give money to a woman, Leah Nicholls, whose husband Joseph had suffered from depression and had cut his throat, leaving her to look after their large family; this was not an isolated occurrence. [4]

What is evident from the many newspaper reports of suicides is that economic reasons and a history of depression were commonly given motives for individuals to kill themselves. Worry over how to feed one’s family, job insecurity during times of economic depression, and a fear of being forced to seek poor relief were all given as possible motives, although other motives could be complex and highly individual.

But they show that life in the past could also be stressful and traumatic, and lead to desperate acts. Some, like Flynn’s, may have been criminal acts, in a way; but many others deserved sympathy and understanding.

FOOTNOTES
1. Derby Mercury, 14 August 1800
2: Lloyd's Weekly Newspaper, 19 March 1871
3: Jackson's Oxford Journal, 26 August 1871
4: My personal research into Leah and Joseph Nicholls of Chipping Norton

 

 

 

 

 

Gleaning, poor women, and the law

“Gleaning” by Arthur Hughes

Gleaning was a right of the poor up to the late 18th century, under common law. After a farmer had harvested his crops, local people could gather any leftovers, providing a useful supplement to a family’s income or providing additional food.

As the local poor had the right to glean, it being a long established practice, Richard Burn made no mention of it in his legal handbook The Justice of the Peace, and Parish Officer.

It was so accepted that in villages, a church bell might be rung each day to signal the time period in which the gleaners could operate.

In a society where common pasture and fields were being steadily enclosed, restricting the land that labouring people could use to keep animals or grow their own small crops, gleaning was a much needed source of income.

This much needed right was substantially eroded in 1788, when the case of Steel versus Houghton was determined in the House of Lords. The case centred around a Suffolk woman, Mary Houghton, who was sued for trespass by a local landowner, James Steel, after she gleaned on his farmland. However, the case had followed increasing tension between landowners and farmers and the local labouring population in East Anglia.

The case’s verdict stated that gleaning was not a right of the poor, but a privilege – and so to glean was to trespass on another’s land. Lord Loughborough, who gave the judgement, argued that charitable acts by individual landowners should not be seen as legal obligations, and that the creation of any such obligation would make the poor more ‘insolent’.

In such a way did the gleaning case mark the gradual change in attitude toward the poor that occurred in the late eighteenth and early nineteenth centuries, prior to the creation of the 1834 New Poor Law.

Yet gleaning did not die out altogether as a result of the 1788 case. The following year, in Northamptonshire, Mary Tebbutt, a married woman, appeared before local magistrate George Spencer – the 2nd Earl Spencer – to complain that another woman, Elizabeth Loucke, had taken some gleanings off her. Mary had been gleaning in a field belonging to local farmer George Buttons, when Elizabeth – believing she was entitled to glean in the field but Mary wasn’t – assaulted her and grabbed the gleanings.

Spencer was obviously aware of the 1788 precedent, and did not regard either woman as having the right to glean. Instead, he argued that George Buttons had the right to decide who – if anyone – could glean on his land, and that therefore, both women were wrong. He made them acknowledge this, and after they promised to behave better in the future, he dismissed them [1. The papers of the second Earl Spencer, British Library, Add MSS 76337-76340].

But even into the nineteenth century, in rural England, gleaning continued to be debated over in justicing rooms. Samuel Whitbread, dealing with cases in Bedfordshire, dealt with three cases – two in 1811 and one in 1813.

The first two cases again suggested some conflict between local people when it came to the individual’s rights to glean. In the first case, a local farmer came to Whitbread to get his advice on whether the local poor had the right to ‘glean on a farmer’s land without his leave’. Whitbread made clear that they did not. [2. Alan F Cirket (ed), Samuel Whitbread’s Notebooks (Bedford, 1971), 36]

In the second case, this time, a gleaner approached the magistrate. Elizabeth Kilby ‘complained of abuse in the field’ whilst she was gleaning, and Whitbread quickly dismissed the case. [3. Alan F Cirket, Samuel Whitbread’s Notebooks (Bedford, 1971), 44]. The final case, heard two years later, involved a Biggleswade woman, Ann Thomas, who complained that a local shoemaker, James Pope had not paid for her gleaning, owing her over three shillings. [4. Alan F Cirket, Samuel Whitbread’s Notebooks (Bedford, 1971), 89] This shows the value that gleaning had for poor people – often women.

Ann was reliant on selling her gleanings to improve her income, and the fact that she had visited Samuel Whitbread at Southill –  a four mile walk away – suggests that the owed money was an important part of this income. She got little satisfaction from the magistrate, though, with Whitbread simply referring her to the local constable for help.

These cases show the continued tension between landowners and the labouring poor after Steel v Houghton had been determined. The poorer members of rural societies clearly continued to glean, and to see gleaning as a valuable source of income and as their right. Conversely, landowners, encouraged by the 1788 case, believed that the poor no longer had such a right – but to ensure that they were within their right to stop them from gleaning, they would seek legal advice if necessary.

Long-established habits died hard, and gleaning took a while to die.

For more on gleaning and the Steel v Houghton case, see Peter King’s article, ‘Legal change, customary rights and social conflict in the late eighteenth century: the origins of the Great Gleaning Case of 1788’ (Law and History Review, 10:1, Spring 1992)