In 1722 a ten-year-old girl, Hannah (surname possibly Starky, Norman, or Smart) came before the Old Bailey, charged with thefts. She appears to have been alone in the world – no parents are mentioned and she seems to have no home or family to care for her. Nevertheless, little Hannah was not content to be the object of anyone’s charity and stole from her benefactors. The list of what she stole is staggering: a watch, smocks, sheets, and other linens, a bodice and a petticoat – from two different individuals. Both appeared to have offered the young girl a kindness. John Hoxly had taken Hannah in off the streets, given her shelter, but she stole his goods and pawned them for liquor. Hannah had been sleeping alongside the daughter of her second victim, Anne Harding, when she stole the clothes to be pawned.
All told, Hannah’s crimes deprived her victims of over 8 pounds sterling worth of personal effects. By the letter of the law, that was more than enough to ensure that the young girl would suffer the death penalty. But at the end of each brief summary of Hannah’s crimes, the record indicates that Hannah was found “Guilty to the value of 10 d.” That valuation had nothing to do with Hoxly’s and Harding’s losses. It had everything to do with mercy. Thefts valued over ten pence merited execution. Thefts under that value were seen as open to mercy.
Hannah received mercy from the court. She was one of 35 prisoners sentenced to be transported at this session: over half of all those convicted. Only five were executed. For all that England had a Bloody Code, the courts often found good reason to set aside the extremes, and show some mercy. The mercy shown her was not necessarily unusual and we need to keep that in mind when reading the early modern law. What was on the books did not correlate to people’s lived experience of the courts.
There were two ways in which Hannah might have been thought worthy of mercy: on the basis of her age and her sex. Eighteenth century children weren’t seen as innocent angels: especially not poor and thieving children like Hannah. At the same time, authorities were receptive to the idea that children could be redeemed and a ten-year-old would seem on the verge of either falling irredeemably into vice or being restored to good order and godly living. Similarly, while early modern ideas of women still emphasized their carnal nature as descendants of Eve, popular culture was also willing to excuse women as being less than fully culpable in some cases.
Gregory Durston studied the two broad categories into which women at the courts were slotted: as victims or viragos. Little Hannah might have been a victim in some of the onlookers’ eyes because of her youth and her gender. But a ten-year-old girl either herself a gin addict or taking advantage of the gin craze? She might be seen as more of a virago.
Her crimes were serious enough to warrant punishment, but her age and gender made the court leery of putting the young girl to death. Transportation it would be: how merciful really was that? It’s a false dichotomy that without transportation the only alternative was death. Ashley Rubin shows that other alternative punishments such as whipping, branding, or fining were far less employed after the Transportation Act of 1718. If Hannah had been tried ten years early, she might well have been whipped or received some other punishment: now she would face seven years transported to the colonies. Compared to death, that was mercy. Compared to some of the other punishments more commonly employed before 1718? Not so much.
Durston, Gregory. Victims and Viragos: Metropolitan Women, Crime and the Eighteenth Century Justice System. Bury St. Edmunds: arima, 2007.
Old Bailey Proceedings Online (www.oldbaileyonline.org, version 8.0, 29 March 2018), July 1722, trial of Hannah Starky Hannah Norman , alias Smart (t17220704-59).
Rubin, Ashley T. “The Unintended Consequences of Penal Reform: A Case Study of Penal Transportation in Eighteenth‐Century London.” Law & Society Review 46, no. 4 (2012): 815–51. https://doi.org/10.1111/j.1540-5893.2012.00518.x.