1. Howell, T. B., Comp., A Complete Collection of State Trials and Proceedings for High Treason, and Other Crimes and Misdemeanours (London: Longman, 1816–1828).Google Scholar 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. Faderman, Lillian, Scotch Verdict: Danme Gordon vs. Pirie and Woods (New York: Morrrow, 1983).Google Scholar

3. On the lack of sexual connotation attached to female cross-dressers, see Friedli, Lynne, “‘Passing Women’—A Study of Gender Boundaries in the Eighteenth Century,” in Sexual Underworlds of the Enlightenment, ed. Rousseau, G. S. and Porter, Roy (Manchester: Manchester University Press, 1987), 234–60.Google Scholar On traditional tolerance for lesbianism, see Harvey, A. D., Sex in Georgian England: Attitudes and Prejudices from the 1720s to the 1820s (New York: St. Martin's Press, 1994), 111–15.Google Scholar

4. Langbein, John H., Prosecuting Crime in the Renaissance: England, Germany, France (Cambridge: Harvard University Press, 1974)CrossRefGoogle Scholar; “Shaping the Eighteenth-Century Criminal Trial·. A View from the Ryder Sources,” University of Chicago Law Review 13 (1983): 1–136; Linebaugh, Peter, “The Ordinary of Newgate and his Account” in Crime in England 1550–1800, ed. Cockburn, J. S. (London: Methuen, 1977), 246–69.Google Scholar 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. 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. 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. 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. Seccombe, Thomas (New York: Putnam's, 1894), 200–18 and 357–58.Google Scholar 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. 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. Lewis, W. S. (New Haven: Yale University Press, 1937–1983), 15: 142.Google Scholar 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. See Chancellor, Col. Charteris, 25–26; Swift, Jonathan, The Correspondence of Jonathan Swift, ed. Williams, Harold, 5 vols. (Oxford: The Clarendon Press, 1965), 3: 85Google Scholar; Percival, John, Earl of Egremont, Diary of Viscount Percival… Vol. 1.1730–1733 (London: H.M.S.O., 1920), 75, 76, and 235Google Scholar; Stanhope, Philip D., Earl of Chesterfield, Letters Written by the Late…Earl of Chesterfield to His Son…, 3rd ed., 2 vols. (London: J. Dodsley, 1774), 2: 315.Google Scholar

10. The Ufe of Don Francisco (see Appendix for full reference); The British Journal, 25 April 1730; Burton, John H., Lives of Simon Lovat and Duncan Forbes, of Culloden… (London: Chapman and Hall, 1847), 309–10Google Scholar; Mackenzie, Henry, The Anecdotes and Egotisms of Henry Mackenzie, 1745–1831, ed. Thompson, Harold W. (London: Humphrey Milford, 1927), 103.Google Scholar

11. “On Colonel Francisco” (see Appendix for full reference). The Fall of Mortimer, Henry Fielding's Rape Upon Rape, Michael Clancy's The Sharper. See Goldgar, Bertrand A., Wal-pole and the Wits: The Relation of Politics to Literature, 1722–1742 (Lincoln: University of Nebraska Press, 1976), 107–8Google Scholar; Swift, The Correspondence, 5: 81.

12. 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.” 4.

13. Fog'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. 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. The 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. 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. See The British Journal, 28 February 1730, in addition to the four principal sources documenting the trial.

18. “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. 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. 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. SirFraser, William, Memorials of the Family of Wemyss, 3 vols. (Edinburgh, 1888), 1: 347–54.Google Scholar

21. The British Journal, 7 and 21 March, 11 and 18 April 1730; Chancellor, Col. Charteris, 141.

22. The British Journal, 29 August and 5 September 1730; Menary, George, The Life and Letters of Duncan Forbes of Culloden… (London: Alexander Maclehose, 1936), 347.Google Scholar 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 Wal-pole 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. The 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. Gentleman'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. The British Journal, 26 September 1730.

26. 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. Saussure, César de, A Foreign View of England in the Reigns of George I and George II…, trans. Van Muyden, Mme. (New York: E. P. Dutton, 1902), 119–20.Google Scholar By the early eighteenth century, juries had begun to adopt the standard practice of reporting convicted felons to possess “no goods.” Beattie, J. M., Crime and the Courts in England, 1660–1800 (Princeton: Princeton University Press, 1986), 337–38.Google Scholar See also note 22.

27. “Property, Authority and the Criminal Law,” in Albion's Fatal Tree: Crime and Society in Eighteenth-Century England, ed. Hay, Douglas, Linebaugh, Peter, and Thompson, E. P. (New York: Pantheon, 1975), 17–63.Google Scholar

28. 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. 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. The 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, 229–5. See also note 22.

31. Some Authentiek 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. See Watt, Ian, The Rise of the Novel: Studies in Defoe, Richardson and Fielding (Berkeley: University of California Press, 1957), 220.Google Scholar Terry Eagleton's analysis seems to support this perception even though, for Eagleton, Clarissais 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. 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 Authentiek 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. See Ward, Edward, The London-Spy Compleat…, 3rd ed., 2 vols. (London: J. How, 1706), 1: 73.Google Scholar It will be remembered that Ann Bond was hired through an intermediary.

35. Satan'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. 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. Scotch Gallantry Display'd, 21.

38. 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.” Patten, Robert, 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.Google Scholar

39. 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.” Pope, Alexander, The Correspondence of Alexander Pope, ed. Sherburn, George, 5 vols. (Oxford: The Clarendon Press, 1956), 4: 12–13.Google Scholar 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. For a discussion of this case, see Shugg, Wallace, “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.Google Scholar

41. 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; de Rapin-Thoyras, Paul, The History of England, trans. Tindal, N. (London: Knapton, 1726–1747), 26: 164–65.Google Scholar This must have been taken into account by the Privy Council in considering his application for reprieve.

42. Chancellor, Col. Charteris, 111–13.

43. Stanhope, Letters, 2: 315.

44. 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. Saint-John, Henry, Bolingbroke, Viscount, The Works of Lord Bolingbroke. With a Life…., 4 vol. (Philadelphia: Carey and Hart, 1841), 4: 384.Google Scholar 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. 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. For discussion of Pope's concerns in this regard, see Clark, Donald B., Alexander Pope (New York: Twayne, 1967)Google Scholar; Mack, Maynard, The Garden and the City; Retirement and Politics in the Later Poetry of Pope, 1731–1743 (Toronto: University of Toronto Press, 1969).Google Scholar On the rise of the “new men” of finance and politics, see Dickson, Peter G. M., The Financial Revolution in England: A Study in the Development of Public Credit, 1688–1756 (London: Macmillan, 1967).Google Scholar

47. “On Colonel Francisco”; Mack, The Garden and the City, 183.

48. 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. 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. 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. 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. Plumb, J. H., Sir Robert Walpole, 2 vols. (Boston: Houghton Mifflin, 1961), 2: 15.Google Scholar

52. Plumb, Sir Robert Walpole, 2: 200–32.

53. Simpson, Antony E., “Masculinity and Control: The Prosecution of Sex Offenses in Eighteenth-Century London” (Ph.D. dissertation, New York University, 1984)Google Scholar; “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. 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. Faller, Lincoln B., 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.CrossRefGoogle Scholar

55. Casanova, Giacomo C., Seingalt, Chevalier de, History of My Life, trans. Trask, Willard R., 12 vols. (New York: Harcourt Brace Jovanovich, 1966–1971; orig. 1826–38), 9: 295.Google Scholar

56. 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 [1987]): 423.

57. 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” (Hariman, Robert, “Introduction,” in Popular Trials: Rhetoric, Mass Media, and the Law, ed. Hartman, Robert [Tuscaloosa: University of Alabama Press, 1990], 12).Google Scholar

58. 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 Howson, Gerald, Thief-Taker General: The Rise and Fall of Jonathan Wild (New York: St. Martin's Press, 1970), 317–27Google Scholar; Linebaugh, “The Ordinary.”

59. 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. 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. 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, 41–8.

62. For discussion of the justice of the peace as mediator, see King, Peter, Crime, Justice, and Discretion in England, 1740–1820 (Oxford: Oxford University Press, 2000)Google Scholar, especially 89–93; Paley, Ruth, ed., Justice in Eighteenth-Century Hackney: The Justicing Notebook of Henry Norris and the Hackney Petty Sessions Book (London: London Record Office, 1991), xxxi-iiGoogle Scholar; Shoemaker, Robert B., 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.Google Scholar

63. 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” (SirEden, William, Principles of Penal Law, 2nd ed. [London: White and Cadell, 1771], 257–58Google Scholar).

64. For examples, see Beattie, Crime and the Courts, 128–29; Porter, Roy, “Rape—Does It Have Historical Meaning?” in Rape, ed. Tornaseli, Sylvana and Porter, Roy (Oxford: Blackwell, 1986), 217Google Scholar; Shoemaker, Prosecution and Punishment, 89; Trumbach, Randolph, Sex and the Gender Revolution: Heterosexuality and the Third Gender in Enlightenment London (Chicago: University of Chicago Press, 1998), 29.Google Scholar

65. The Life of Don Francisco, 47; Some Authentiek Memoirs, 1–2 (see Appendix for full reference).

66. 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. de Grosley, Pierre J., A Tour to London: Or, New Observations on England and Its Inhabitants, trans. Nugent, Thomas, 3 vols. (Dublin: J. Exshaw, 1774), 3: 34.Google Scholar

67. See generally Hay, Douglas, “Prosecution and Power: Malicious Prosecution in the English Courts, 1750–1850,” in Policing and Prosecution in Britain 1750, ed. Hay, Douglas and Snyder, Francis (Oxford: The Clarendon Press, 1989), 343–95Google Scholar, 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. Fletcher, Anthony and Hussey, Stephen [Manchester: Manchester University Press, 1999], 75–76Google Scholar).

68. Edelstein, Laurie, “An Accusation Easily Made? Rape and Malicious Prosecution in Eighteenth-Century England,” American Journal of Legal History 42 (1998): 378–79CrossRefGoogle Scholar; Emsley, Clive, Crime and Society in England, 1750–1900, 2nd ed. (London: Longmans, 1996), 44.Google Scholar 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. Staves, Susan, “British Seduced Maidens,” Eighteenth Century Studies 14 (1980/1981): 109–34CrossRefGoogle Scholar; Wagner, Peter, “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. Boucé, Paul-Gabriel (Manchester: Manchester University Press, 1982), 120–40.Google Scholar

70. Staves, “British Seduced Maidens,” 130.

71. Gowing, Laura, “Language, Power, and the Law: Women's Slander Litigation in Early Modem England,” in Women, Crime, and the Courts in Early Modern England, ed. Kermode, Jenny and Walker, Garthine (Chapel Hill: University of North Carolina Press, 1995), 26–47Google Scholar; Trumbach, Sex and the Gender Revolution, 23–49.

72. 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. Russell, Diana E. H., Rape in Marriage (New York: Collier, 1982), 64–68.Google Scholar

73. This scenario is supported by the findings of other studies. Clark, Anna K., Women's Silence, Men's Violence: Sexual Assault in England, 1770–1845 (London: Pluto Press, 1987), 104–9Google Scholar; Harvey, Sex in Georgian England, 81–84; Hitchcock, Tim, English Sexualities 1700–1800 (New York: St. Martin's Press, 1997), 108CrossRefGoogle Scholar; Mendelson, Sara and Crawford, Patricia, Women in Early Modem England, 1550–1720 (Oxford: Oxford University Press, 1998), 106–7.CrossRefGoogle Scholar 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. 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. Trumbach, Sex and the Gender Revolution, 23–45.

76. 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. 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. Langbein, John H., “The Criminal Trial Before the Lawyers,” University of Chicago Law Review 45 (1978): 305–7.CrossRefGoogle Scholar

79. 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 Berger, Vivian, “Man's Trial, Women's Tribulation: Rape Cases in the Courtroom,” Columbia Law Review 77 (1977): 1–103.CrossRefGoogle Scholar 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 McColgan, Aileen, “Common Law and the Relevance of Sexual History Evidence,” Oxford Journal of Legal Studies 16 (1996): 275–307.CrossRefGoogle Scholar

80. 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. 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. 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. Langbein, Prosecuting Crime, 7–125.

84. Simpson, “The ‘Blackmail Myth,’” 122–23.

85. 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), Diary 1740 through October 1767. LMA CLRO SM 107–34.

86. 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. Simpson, “Masculinity,” 837.

88. 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. Fog's Weekly Journal, 28 December 1728.

90. 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. 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. 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 (September 1733): 493 and 3 (October 1733): 548.

93. 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. R. v Tugwell, Matthews, and Whitney, OBP, 11 September 1735, 150–52, nos. 65, 66, and 67; GM, 5 (September 1735): 558.

95. R. v Blackwell, OBP, 24 October 1735; GM, 5 (October 1735): 618 and 5 (November 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.Google Scholar For a detailed history of the careers of Gregory and Turpin, see Barlow, Derek, Dick Turpin and the Gregory Gang (London: Phillimore, 1973).Google Scholar Accounts of the rape and Gregory's trial for it are included in pages 85–92 and 199–209 of this source.

96. 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. Gatrell, V. A. C., The Hanging Tree: Execution and the English People, 1770–1868 (Oxford: Oxford University Press, 1994), 7 and 616.Google Scholar

97. See the discussion in Parliamentary Debates, 3rd series, 57 (1841): 47–58.

98. 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. 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. 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. 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. Leeson, Hugh, The Case of Capt. Leeson, Etc… (London: J. Roberts, 1715).Google Scholar For a broad discussion of the venality of the criminal justice system in this period, see Howson, Thief-Taker General.

102. Simpson, “Masculinity,” 293.

103. 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. 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. 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. Beattie notes that only “a handful” of prisoners had counsel in the 1730s and that counsel 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 May, Allyson N., “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. Smith, Greg T., May, Allyson N., and Devereaux, Simon (Toronto: University of Toronto, Centre of Criminology, 1998), 198.Google Scholar

107. 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 (Beattie, J. M., “Scales of Justice: Defense Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries,” Law and History Review 9 [1991]: 221–67CrossRefGoogle Scholar). 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. Langbein, John H., “The Prosecutorial Origins of Defence Counsel in the Eighteenth Century: The Appear ance of Solicitors,” Cambridge Law Journal 58 (1999): 314–65.Google Scholar 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. SirHawkins, William, A Treatise of the Pleas of the Crown, 2 vols. (London: J. Walthoe, 1716–1721), 2: 87Google Scholar; 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. Hawkins, A Treatise, 2: 87.

110. Simpson, “Masculinity,” 235.

111. 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. Simpson, “The ‘Blackmail Myth.’”

113. Landsman, Stephan, “One Hundred Years of Rectitude: Medical Witnesses at the Old Bailey,” Law and History Review 16 (1998): 445–94.CrossRefGoogle Scholar

114. They were used to determine whether women accused of infanticide had in fact recently given birth, and they were also used in civil cases. Oldham, James C., “On Pleading the Belly: A History of the Jury of Matrons,” Criminal Justice History 6 (1985): 1–64.Google Scholar Mid-wives 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. See, for example, R. v Purse, OBP, 10 May 1780.

116. 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. Simpson, “Masculinity,” 168–84 and 197–99.

118. R. v Green, OBP, sessions ending 13 May 1769.

119. For a full discussion of the bizarre dimensions of this case, see Simpson, “Vulnerability.”

120. Bondeson, Jan, The London Monster: A Sanguinary Tale (Philadelphia: University of Pennsylvania Press, 2000).Google Scholar

121. Cuklanz, Lisa, Rape on Trial: How the Mass Media Construct Legal Reform and Social Change (Philadelphia: University of Pennsylvania Press, 1996), 7.CrossRefGoogle Scholar

122. Black, Jeremy, The English Press in the Eighteenth Century (Philadelphia: University of Pennsylvania Press, 1987), 104–8Google Scholar; Graff, Harvey J., The Legacies of Literacy: Continuities and Contradictions in Western Culture and Society (Bloomington: Indiana University Press, 1987), 230–48.Google Scholar

123. Faller, Turned to Account, 207; Herrup, Cynthia B., A House in Gross Disorder: Sex, Law, and the 2nd Earl of Castlehaven (New York: Oxford University Press, 1999), 134.Google Scholar

124. 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. Beattie, Crime and the Courts, 129–32.

126. 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” (East, Edward H., A Treatise of the Pleas of the Crown, 2 vols. [London: Butterworth, 1803], 1: 440Google Scholar). 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. SirHale, Matthew, Historia Placitorum Coronae. The History of the Pleas of the Crown, new ed. By Emlyn, Sollom and Wilson, George, 2 vols. (London: T. Payne, 1800), 1: 627.Google Scholar

127. 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. Tobin, Beth F. (Athens: University of Georgia Press, 1994), 86–112.Google Scholar

128. 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. 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. 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. Simpson, “Masculinity,” 114 – 62; “Vulnerability.”

132. 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. This was formally established in an arson case, R. v Doran, heard in the Old Bailey in 1790. Leach, Thomas, 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.Google Scholar

134. See Hawkins, A Treatise, 2: 440.

135. 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. For example, Beattie, Crime and the Courts, 401–19.

137. 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. 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. 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. Herrup, A House in Gross Disorder, 115–54.

141. See, for example, Shugg, “The Baron and the Milliner,” 314.

142. See Bashar, Nazife, “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), 28–12Google Scholar; 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.” Sharpe, J. A., Crime in Seventeenth-Century England: A County Study (Cambridge: Cambridge University Press, 1983), 170.Google Scholar

143. 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.