An eighteenth-century magistrate as detective: Samuel Lister of Little Horton
John Styles MA
(First published in 1982 in volume 10, pp. 98-117, of the second series of The Bradford Antiquary, the journal of the Bradford Historical and Antiquarian Society.)
The author wishes to acknowledge the generosity of the Twenty Seven Foundation, which supported the publication of this article with a grant.
Eighteenth-century social history has many dark corners, but the county magistracy does not, at first sight, occupy one of them. The distinctive blend of judicial, police and administrative functions which characterised the work of the eighteenth-century justice of the peace has been remarked upon by many historians Few general surveys of the Georgian era fail to acknowledge the crucial role of the county magistrate in shaping and directing provincial life.1 However, the orientation of research into the eighteenth-century magistracy has been decidedly skewed. Whereas the social composition of the bench and the magistracy's administrative functions have attracted considerable attention, there has been little systematic study of the ways in whieh magistrates performed their responsibilities under the criminal laws.2
This account of the activities of Samuel Lister of Horton House, a justice of the peace for the West Riding of Yorkshire between 1751 and 1769, examines some of these neglected aspects of a magistrate's execution of his office. Its concern is not, however, with the whole range of those infractions which in the eighteenth century were labelled, rather loosely as crimes. It focuses specifically on the magistrate's role in the investigation and prosecution of serious offences: in particular those indictable offences against property which were the concern of tile Assize courts - serious and aggravated thefts, forgery, counterfeiting.3
Samuel Lister of Horton House at Little Horton in the parish of Bradford, about a mile from the town of Bradford, was born in 1714 into a minor gentry family long-established in the locality.4 Like the sons of several such families in the West Riding of Yorkshire in the early eighteenth century he trained as an attorney. He practised in that capacity from 1738 to 1751, but then gave up his practice in order to act as a justice of the peace for the Riding. Although it was not uncommon for attorneys to be inserted in the Commissions of the Peace, they were barred from acting as magistrates as long as they continued to practise. Lister's name was inserted in the West Riding Commission in 1749. His father had been a prominent figure on the West Riding bench and, as was often the case when son succeeded father as a magistrate, Samuel Lister began to act only after his father had discontinued justicing. Lister took the oaths of office in July 1751.5 His father died the next year and Samuel succeeded to the family estates at Horton and at Ovenden, five miles to the south-west in Halifax parish.
The huge adjoining parishes of Halifax and Bradford were at the heart of the West Riding woollen textile district. This was the most heavily populated portion of the Riding and, according to Defoe, 'one of the most populous parts of Britain, London and the adjacent parts excepted'.6 Between the principal market towns, Leeds, Wakefield, Halifax, Huddersfield and Bradford, settlement was scattered across all except the highest hills. This kind of area, densely populated, industrial and dotted with towns, none of which, apart from Leeds, enjoyed corporate self-government with its own justices, generated a disproportionate amount of business for the county magistracy. Yet throughout the eighteenth century this district and those like it in other parts of the country were characterised by a relative shortage of resident acting justices.
This shortage reflected in part the reluctance of local men named in the Commissions of the Peace to take on the massive work-loads generated in such localities. In the case of the West Riding woollen textile district, it was also a reflection of the relatively small number of resident gentry The area was a stronghold of the small freeholder. Several of its largest landowners lived elsewhere, or spent only part of their time resident in the district. Of course the eighteenth-century West Riding Commissions and bench were never the exclusive preserve of the landed gentry, but the gentry predominated. During most of the eighteenth century there were more magistrates in the areas of heavy gentry residence to the east of Leeds, Wakefield and Rotherham than in the western, industrial parts of the Riding.7 The shortage of resident magistrates in the textile dlistrict was most acute in its western parts. Halifax parish was estimated in 1764 to have a population of over 40,000 a population that was almost wholly dependent on the staple woollen and worsted industries. Yet in 1751, when Samuel Lister began to act, Halifax parish had no resident magistrate. It was not to acquire one at any point during Lister's career as a justice, which ended with his death in November 1769. In the same period, though, Lister's own somewhat smaller parish of Bradford was better served. Between 1751 and 1755 it had three justices at least partially resident (including Lister) and thereafter two.
Out of a total of approximately thirty-five acting for the West Riding as a whole but during the course of Lister's eighteen-year justicing, career only one new magistrate began to act in the area. With deaths and retirements, therefore, the number of acting justices fell to three by the late 1760s (out of a total for the Riding which remained approximately thirty-five). Of these three, one, Henry Wickham of Cottingley, was called upon to deal with much of the business from the enormous though thinly populated Wapentakes of Staincliffe and Ewcross, which stretched fifty miles north-west to the Westmorland border. Another, Edward Leedes of Royds Hall, between the towns of Bradford and Halifax, owned property at South Milford near Tadcaster and spent part of his time resident there. Consequently, by the later 1760s, the major part of the voluminous business generated in the western half of the textile district came to fall on Lister's shoulders.
This was particularly true of serious criminal cases. The number of these cases processed by Lister grew markedly in the course of his justicing career, both in absolute terms and as a proportion of all such cases in his locality and the West Riding. Calendars of prisoners committed to York Castle for trial at the Yorkshire Assizes survive in a continuous series from 1755 to 1768.10 In that period, Lister committed or shared in the committal of nineteen suspected offenders concerned in sixteen distinct cases. Only one other West Riding magistrate made more committals than Lister during that period. Yet whereas Lister was only the fifth most active magistrate (by this measure) in the Riding during the seven years 1754 to 1761, making 42% of all committals, in the subsequent seven years, l761 to 1768, he was the Riding's single most active justice, making 18.4% of all committals. In these later years, Lister dealt with the majority of the cases emanating from the western half of the textile district, especially those from Bradford and Halifax parishes.
Hence there was ample justification for the praise accorded Lister after his death by the Marquis of Rockingham, Lord Lieutenant and Custos Rotulorum of the West Riding. He commented in 1769 that 'I regret him not only as a private friend, but also from his having been so useful and active a magistrate'.11 Yet Lister's activity as a magistrate should not be interpreted simply as a reflection of the demands made on him because of the growing shortage of justices in an area generating a particularly heavy flow of business. In practice, no magistrate could be forced against his will to be so consistently active, whether by those who called upon his services, by his fe1low justices, or even by the Lord Lieutenant. From the start of his justicing career Lister took an extremely conscientious view of his duties. He was already receiving praise for his unusual diligence in l756.12
That he chose to be active, and not merely in the criminal sphere, is suggested by his record of attendance at Quarter Sessions. Attendance at Sessions, where the bench dealt with a wide range of criminal and administrative concerns, was neither compulsory nor automatically dictated by the press of business in a magistrate's immediate locality. To an extent therefore, it provides a measure of a justice's own willingness to act. The West Riding Quarter Sessions operated in the mid-eighteenth century on a peripatetic basis, with a regular circuit of ten sittings each year. Lister attended an average of 26 sittings per year. He was the sixth best attender out of sixty-four magistrates who sat at Quarter Sessions during the 1750s and 1760s.13
These statistical measures of Lister's performance as a justice, impressive though they are, only partly explain why that performance earned him such praise from his contemporaries. When we consider the serious property cases already described it is clear that Lister was distinctive not merely for the number that passed through his hands, but also for the manner in which he was prepared to deal with at least some of them.
The eighteenth-century county magistrate's principal concern in these cases was the entry of suspected offenders into the judicial system in order that they might face trial. The county magistrate had no formal judicial role in their trial at the Assizes, but virtually all those who faced trial had appeared initially before a justice of the peace. It was almost universal practice for those who had been apprehended, and against whom charges were going to be pressed, to be taken before a justice for examination and committal. This was true whether the arrest was made by a private individual, or by a minor law officer like a constable or a watchman.
Under sixteenth-century legislation the magistrate had a number of duties in such circumstances: to take written examinations from those charged with felony or suspicion of felony, to take examinations from the accuser and witnesses; to commit the accused to prison to await trial or to bind him over to appear in court; to bind accuser and witnesses to appear in court.14 Under his Commission he also had a general, though ill-defined responsibility to apprehend felons and commit them to prison for trial.15 All these duties, apart from the binding over of those accused of felony (which was rare), could be performed by a single justice acting alone.
In performing these duties, eighteenth-century magistrates operated as critical receptors of cases into the official machinery of justice. Overwhelmingly, they processed suspected offenders brought before them by others. It was unusual for them to take an active role in the detection and apprehension of offenders, although they had the means to oversee these processes, particularly through their power to issue search or arrest warrants. Yet once an offender had been taken into custody. they regularly adopted a critical attitude to the evidence presented before them. This might involve dissuading an aggrieved party from pressing charges, or extend to directing the collection of new evidence in order to construct a more effective case against the accused or additional suspects. Some justices (and Samuel Lister was evidently one of them) would on occasion adopt a much more active role overall if they considered circumstances required it.
However, only a few of the cases that came before Lister occasioned unusual activity on his part. In fact, although he was undoubtedly an assiduous magistrate, the available evidence suggests that his handling of most of his serious criminal business was not significantly different from that of many of his colleagues on the bench. In order to indicate the conventional role of the eighteenth-century magistrate in criminal investigation and to understand why at least some of Lister's activities were exceptional, it is instructive to consider how he handled the bulk of his serious criminal business. Depositions survive for almost all the Yorkshire Assize cases that Lister had a hand in processing.16 These depositions account for seventeen cases of theft, one of forgery and one of murder. There is also a set of depositions concerning a major episode of clipping and counterfeiting during the late 1760s, in the investigation of which Lister's role was clearly exceptional and which will therefore be discussed separately. Evidence about the chain of events that led to the depositions being sworn before Lister is available for twelve out of the nineteen remaining cases. All of the twelve involved thefts.
In eight of these cases it appears from the depositions that the suspects were apprehended without any previous approach to Lister or another magistrate. It was only after the suspect had been taken into custody that the parties came before the justice.17 Yet in none of them were the suspects simply caught in the act. In six they were apprehended as a result of a greater or lesser degree of detective effort on the part of the victim. Take, for example, the case against Samuel Jackson and Mark Farrar in 1763. Between 9pm and 10pm on Sunday 27 March 1763 some articles of clothing, a bible and a prayer book were stolen out of the house of Jonas Shackleton, a stuffmaker who lived at Wadsworth in Halifax parish. Shackleton's wife was out of the house at the time, and Shackleton and the rest of the household were in bed. The wife, on returning home about 10pm discovered the theft and roused her husband. He immediately went in search of the offenders, along with two manservants. Nearby they encountered two men who, on enquiry, reported that earlier that evening they had seen Samuel Jackson, Mark Farrar and Farrar's brother all of whom they knew by name, talking near Shackleton's house. The two men joined the pursuit and in the course of the night they searched out and apprehended Jackson and the Farrar brothers (all of whom lived nearby), finding the stolen property in the process The next couple of days at least eight people involved in the affair travelled the ten miles to Horton in order to appear before Lister. He took depositions from six witnesses, examined Jackson and Mark Farrar, and committed them to York Castle to await trial at the York Assizes in July 1763.18
In these six cases, therefore, responsibility for the work of criminal investigation was taken by the victim of the crime. In at least three of them (including the case of Jackson and Farrar) the constable of the appropriate township was called upon to assist, but only at a late stage in the process of investigation and then primarily to hold the suspects in custody until their appearance before the justice. The constables appear to have responded directly when summoned by the victim, without any prompting from the magistrate. In the other three cases there is no evidence of any reference whatsoever to the local constable. In the two remaining cases where the suspects were apprehended before an approach was made to the justice, the arrests did not rely on the initiative of the victim. The accused was taken up by a third party, who had no knowledge of a specific offence having been committed. One case, for example, was initiated by a Halifax silversmith to whom a man offered a silver pint and other silverware for sale from which identification letters had been filed. The silversmith's suspicions aroused, he sent for a constable, who came and arrested the suspect. On enquiry in the town, several people reported that a house at Brighouse (three miles away) had been robbed of some silver the previous night. The next day the constable, the suspect and the victim of the robbery appeared before Lister.19
This analysis of Lister's contribution to the process of criminal investigation confirms that the justice's role in the initial discovery and apprehension of serious offenders against property was usually a passive one. He received into the official machinery of justice suspected offenders who were detected and carried before him by others. Members of the public did not report the bare fact of a serious criminal offence to a magistrate as a matter of course, in the expectation that he would take responsibility for discovering and apprehending the culprit. The county justice was not regarded as an eighteenth-century equivalent of a modem police criminal investigation department.21 Even though he might grant a search or arrest warrant while the offender was still at large, the initiative did not thereby become his. Indeed it is evident from Lister's cases and from other eighteenth-century magistrates' correspondence and notebooks that the vast majority of serious criminal cases came to a magistrate's attention only after both the identity of the suspected offender and at least an outline of the case against him had been established.
The criminal investigation process did not end with the arrest of a suspect. After all, the object of the exercise was to establish the suspect's guilt or innocence. Although in serious criminal cases this remained primarily the responsibility of the courts, the magistrate nevertheless had an important duty to establish and record the facts of the case: indeed, to marshal the evidence. Because information is available only for cases which Lister passed on for trial, it is not clear whether he, like some mid-eighteenth-century justices, refused to commit suspects when he considered the evidence did not warrant it. However, the surviving depositions do show that Lister could be a probing and astute interrogator of both accused and witnesses. For example, in 1766, when a man charged with the theft of a horse claimed in his examination before Lister that his accuser had sold him the animal in exchange for half a guinea and a silver watch the magistrate proceeded to interrogate him about the provenance of the watch. Faced with detailed questioning about his story the man proved unable to give a satisfactory account.22
Lister would also contribute to improving the quality of the case against an offender by taking additional evidence after the initial examination and committal. This is well illustrated by the depositions concerning James Radcliffe. Radcliffe, his accuser and witnesses appeared before Lister on 1 January 1757. He was charged with killing and attempting to steal a sheep. Two days previously in the afternoon, the sheep had been found by its owner, shot dead and partly butchered in the snow on Midgely Moor in Halifax parish. The owner and some of his neighbours gave evidence that they had concealed themselves nearby and watched the carcass until about 10pm when they saw Radcliffe come and put it in a bag. They had then seized him Radcliffe, in his defence, denied the killing and claimed he too had earlier found the carcass and had come back to take it because he thought it, 'might be of service to him'. Lister committed him that day to York Castle. However, the magistrate was sufficiently attentive to Radcliffe's defence that, ten days later, he bound over witnesses who could counter it by swearing they had seen him earlier on the day in question on the moor with a gun.23
These examples demonstrate once again just how assiduous Samuel Lister could be in his handling of serious criminal offences. But the same critical marshalling of evidence against a suspected offender can be found in depositions taken by a number of West Riding magistrates. Lister's management of some cases was, however, much more distinctive Two episodes in particular occasioned special comment by contemporaries. The first came early in his career as a justice, when he became involved in a case of forgery in Gloucestershire. The second was immediately before his death, and concerned the clipping and counterfeiting of the gold coin in his own neighbourhood.
On Monday 19 January 1756 a man calling himself William Wilkins was brought before Lister as a result of his failure to pay his reckoning at inns at Wakefield, Dewsbury and Halifax. Lister later pointed out that 'the Devil would have been in him if he had paid anything, for he had not a sixpence in his pocket all the time'.24 Wilkins was questioned and his pockets searched. He claimed he was a clothier from a place he called Lodgemoor near Painswick in the county of Somerset. In his pocket was found a book containing two letters, one postmarked Gloucester two bills of exchange (for £20 and £80 respectively), made payable to William Wilkins, a promissory note for the enormous sum of £1100, and two protections, one for Wilkins, signed by Lord Chedworth. A protection of this sort provided immunity from arrest in civil suits, particularly actions for debt. Peers enjoyed the right to confer such protections by virtue of their parliamentary privilege.25
The letters in Wilkins's possession were not signed, but appeared to Lister to have been written by Wilkins's wife. They indicated, albeit obliquely, that Wilkins and his wife, along with others had been involved in the forgery of bills of exchange and other commercial paper in the West Country. They also suggested that Wilkins had fled from his home to Yorkshire in order to escape prosecution. Lister's suspicions were borne out by the presence in Wilkins's custody, at a time when he had virtually no ready money, of such an exceptionally valuable promissory note and the bills of exchange. The magistrate was convinced that the bills, the note and the protections were forgeries.
Forgery of commercial paper, such as bills of exchange or promissory notes, was by the mid-eighteenth century a capital offence - felony without benefit of clergy - but no-one had actually come before Lister to swear a forgery charge against Wilkins. Eighteenth-century magistrates possessed extensive powers of committal where those suspected of felony were concerned, but it was agreed by the best legal authorities that to commit a suspect to prison merely on suspicion, the justice should have legally sufficient grounds for believing that a felony had been committed and usually a sworn accusation against the suspect.26 Lister had neither.
Lister was convinced of Wilkins's guilt of a capital offence and determined that he should not escape justice. Nevertheless, he was uncertain as to how to proceed when the only substantive charge against the suspect concerned his defrauding local innkeepers of trivial sums of money.27 Faced with this predicament Lister turned for advice to a man more expert in such legal niceties than himself - Richard Wilson, his friend, a leading barrister and Recorder of the borough of Leeds. Wilson suggested that the suspect should be committed to prison for failing to find sureties for his good behaviour. 28 Wilkins, who had no friends in Yorkshire, was clearly in no position to find sureties at short notice. Recorder Wilson also recommended that while Wilkins remained in custody. steps should be taken to establish the truth or otherwise of the Yorkshire magistrate's suspicions by sending news of his apprehension into the West Country and by advertising him in the London newspapers.
Lister responded with characteristic energy to both suggestions, but in attempting to disseminate information concerning Wilkins he faced considerable obstacles. In the mid-eighteenth century there was no official machinery for distributing information about suspected offenders between counties and regions. Moreover Lister and Recorder Wilson appear to have had little knowledge of, or established links with the West Country. They were at first both unsure whether Painswick was in Somerset (as Wilkins claimed) or in Gloucestershire (its actual location), despite the fact that it was, like Bradford and Leeds, a cloth producing centre. Neither of them were acquainted with even the names of any justices of the peace in the two counties.
These obstacles were all the more significant because time was short. It was evident from the letters discovered in Wilkins's possession that his associates and his wife were bound over to appear at the Lent Assizes in one of the two western counties. Lister and Recorder Wilson would have been aware that the Assizes there, like those on the other circuits, were probably to be held sometime in March. It was important to ensure Wilkins's appearance at the particular Assizes concerned, because if the others were acquitted in his absence, it would be impossible to try them again on the same charge.29 Moreover it was doubtful how long Wilkins could be held in prison merely for want of sureties. The Yorkshire justice and barrister foresaw him securing a rapid release if friends came to stand bail for him.
Recorder Wilson also assisted the magistrate in drawing up the advertisement to be placed in the London press Lister arranged to have it inserted in a newspaper by a Gray's Inn barrister who regularly corresponded with a local attorney of Lister's acquaintance. The barrister chose the General Evening Post, one of a number of thrice- weekly London evening papers which circulated more widely in the provinces than other London newspapers.33 The advertisement appeared in the editions of 31 January and 2 February 1756.
Meanwhile Lister had evidently been putting the word about the Bradford area that he required information concerning affairs in the West Country. His mercer at Bradford turned out to be acquainted with a gentleman in one of the two counties probably a large clothier who was one of the mercer's suppliers. The mercer also introduced Lister to a Mr Walter Merrett from Minchinhampton near Painswick in Gloucestershire who was 'upon a journey in Yorkshire'.34 Merrett suggested that the Yorkshire magistrate write to Nathaniel Lloyd, a gentleman clothier who lived at Uley in Gloucestershire, eight miles south-west of Painswick. Lister immediately despatched letters to both these gentlemen similar to that he had sent to Wilson's Bath landlord.
The steps taken by Lister on Wilson's advice to establish the truth or otherwise of his suspicions about Wilkins were essentially speculative expedients. There was no certainty that anyone in the West Country acquainted with the case would see the newspaper advertisement (after all he was advertising in a London, not a local paper). Nor could Lister be sure that any of the people to whom he had written (none of whom were acting magistrates) would either be able or be prepared to assist him. Lister's energy, determination and persistence in such discouraging circumstances are impressive. His endeavours involved him in some expense. The General Evening Post would have charged him approximately seven shillings for the insertion of his advertisement.35 He probably also paid both for the London barrister's assistance in placing the advertisement and for the postage of the various letters he dispatched. Moreover, by soliciting information in this way he laid himself open to future expense and inconvenience which were entirely unpredictable.
As events were to prove, Lister's suspicions concerning Wilkins were justified. The Yorkshire magistrate received four letters in reply to his newspaper advertisement.36 These established that 'Wilkins' was in fact one Edward Wilson a clothier from Painswick near Stroud in Gloucestershire. Wilson, in association with several others, had been concerned in forging and circulating in the West Country counterfeit bills to the value of £4,000 or £5,000. The parties in Gloucestershire interested in the affair who wrote to Lister arranged quickly for a Habeas Corpus to remove Wilson from Yorkshire to Gloucester, so that he could take his trial at the impending Assizes there. One of them came north to execute it Wilson stood trial at Gloucestershire on 20 March 1756, was convicted and sentenced to death.
Lister's involvement did not end there, however Wilson's execution was respited, suggesting he was likely to receive a commuted sentence or a pardon. The forger proceeded to send Lister an extremely cheeky letter, demanding the return of the papers (including the forged note and bills) which the magistrate had taken from him in January. Lister had already received a request from Lord Chedworth's attorney to send him the protections granted in his Lordship's name and found in Wilson's pocket. Subsequently Lister received another letter from Gloucestershire, this time on behalf of one of the original respondents to his advertisement. The man concerned had acted as prosecutor in Wilson's trial, but, after the Assizes, he was himself charged with forgery by the other interested parties. The Yorkshire magistrate was asked to send the man one of the letters received in reply to the advertisement in order to help his defence. Confronted with these various requests and not at all sure what was going on Lister had to turn once again to a London barrister. He employed the barrister to consult a judge about the propriety of returning the forgeries to the convicted man and, after the judge refused to assist, to arrange the final disposal of the various papers. Although Lister had earlier remarked that he was going to such trouble over the case because he conceived it was his duty to do all he could to bring offenders to justice, it is difficult not to detect a note of exasperation in his comment at the end of May that 'there has been a great scene of villainy amongst these people, and ... I do not know which of them is the greatest'.37
Yet, if Lister's energetic performance of what he considered his duty brought him inconvenience, expense and exasperation in 1756, it certainly did not discourage him from subsequently adopting a similar course of action in appropriate circumstances. For example, in November 1764 one John Slack was brought before Lister, having been seized by a Halifax innkeeper who noticed a pistol poking out of his pocket and therefore suspected him of being a highwayman. Lister committed him to the House of Correction at Wakefield and arranged to have him and his horse advertised in a London newspaper. In this instance, the prospect of being advertised was itself enough to persuade the suspect to attempt an escape and, on his recapture, to confess to the theft of the horse at Leicester.38
The Yorkshire 'yellow trade' was a product of an acute and localised cash shortage in the western part of the West Riding textile district in the 176Os.39 This arose out of the difficulties experienced by the region's staple industry towards the end of the Seven Years War and in its aftermath. Under conditions of local cash shortage, gold, guineas that were deficient in weight by over five shillings in value became acceptable at face. In these circumstances, it was highly profitable to scour the region and, indeed, the nation, for undiminished coins to clip or file down to the locally acceptable weight (subsequently restoring the milling) and to recirculate them. The value of the gold clippings and filings thus obtained was realised by having them coined into counterfeits, which, being themselves precious metal were also widely accepted in the locality. The two branches of the yellow trade - clipping and coining - were, therefore, mutually dependent. Those who coined appear to have been relatively few, but clipping and supplying coin at a premium for that purpose were common practices in the area. The trade thereby provided widely diffused economic benefits that were available at almost every social level. As this was a period of acute recession in the region's staple industry, and as the yellow trade appeared not to harm anyone except the government, it is hardly surprising that it enjoyed, like smuggling in the coastal areas, enormous popular support. This enabled it to proceed in a remarkably overt manner, particularly in its heartland, Halifax parish.
Nevertheless, clipping and coining the English gold coin were capital offences: high treason. Other activities which contributed to the yellow trade, such as uttering counterfeits, or counterfeiting Portuguese coin (which circulated in considerable volume in mid-eighteenth-century England), were also offences, though non-capital. The trade could be very damaging to those such as merchants or tax collectors who were obliged to make payments outside the area. Yet in spite of its manifest illegality and its local enemies, the trade, already well-established by 1765, was not subject to a sustained attack on its own territory until 1769. In order to understand the significance of Samuel Lister's role in that attack, it is necessary to explain the trade's long immunity from concerted legal action. The fundamental obstacle to the enforcement of the crimina1 laws against the yellow trade was the extent of its popular support. As a correspondent to the Leeds newspapers remarked in 1769, 'the old proverb, everybody's business is nobody's, is sufficient protection from prosecution'. 40 If that failed, the practitioners of the trade had the resources to bribe or intimidate those who opposed them. Although there is no evidence, other than innuendo, that Lister or other magistrates were suborned, minor law officers were notable participants in the trade and magistrates and potential witnesses were threatened. At least two murders were later to demonstrate that these were not empty threats.
Nevertheless, there were other obstacles to enforcing the law. The evidential standards demanded by the courts in capital coinage cases were stringent, much more so than the texts of the justicing manuals would have suggested. Lister and his fellow West Riding magistrates in the mid-176Os had hardly any experience of such cases. When they did obtain evidence, which could often be highly technical, they bungled the job of constructing effective cases. It was precisely this problem that the solicitor of the Mint was supposed to remedy. Offences against the gold and silver coin were distinctive, in that finance and direction were provided for prosecutions through this officer. In particular, he was required to direct county magistrates in the collection and collation of evidence. Yet in the 176Os, as a result of financial difficulties, the Mint solicitor was discouraging magistrates from undertaking investigations.
All these obstacles manifested themselves in 1765, when the first complaints were made by the West Riding magistrates to the Mint solicitor and the Treasury regarding the yellow trade. In that year a single, abortive prosecution for clipping was undertaken against a man from Halifax parish. Some Mint finance was provided, but only a bare minimum of active assistance from the Mint solicitor. Nevertheless, he complained that the magistrates were incompetent in collecting evidence and it was on his instructions that the case was eventually abandoned.
It is unclear whether Lister was directly involved, but undoubtedly this early debacle highlighted the obstacles to enforcing the law against the yellow trade, and for several years discouraged Lister and other magistrates from further action.41 Significantly, when Lister did take the initiative in 1769, it was without the assistance of the Mint solicitor.
Lister's associates in that initiative were important local worsted manufacturers and a number of local gentry, including John Stanhope of Horsforth, a leading Northern Circuit barrister. The attitudes of manufacturers towards the yellow trade were divided. Some, especially in the vicinity of Halifax, used their legitimate participation in inter-regional circuits of cash and credit to profit from it. Others were more concerned about the crippling problems it posed for their legitimate business. However, their concern was not simply with the difficulty of making commercial payments outside the area but also with the threat to their personal wealth from being obliged to hold so much diminished coin. Presumably local gentlemen like Lister felt similarly threatened. These problems became acute during the late spring and early summer of 1769.42 In response, a number of meetings were held between manufacturers and gentlemen.
As we have seen, in most serious criminal cases a magistrate processed offenders and the evidence that others (usually the victim of the offence) brought before him. For the magistrate to commit a suspect on suspicion of a capital charge. or indeed to issue warrants, evidence that was legally sufficient had to be provided on oath. This was no mere technicality, because magistrates who ignored it sometimes faced proceedings for false imprisonment. Unlike the victims of most thefts, those who were injured by the offences comprising the yellow trade were injured indirectly. They were therefore unlikely to be able to provide the sort of evidence on oath regarding particular circumstances or individuals that could justify an arrest or search warrant. Those with direct experience of the trade who were in a position to provide such evidence were general1y its beneficiaries. They had no reason to press charges, especially in a context of intimidation and public support, Nor, under such circumstances, were third parties likely to apprehend coinage offenders on a slight suspicion, in the way the Halifax innkeeper apprehended John Slack, the suspected highwayman, in 1764. The character of the publicly accessible aspects Of the trade was such as to provide third parties with little certainty as to criminal intent. Trading in coin for profit was a legitimate and widespread activity in an area suffering from an acute cash shortage. Clipping required no special equipment, and could be effected quickly and simply in private. Clippings were easily concealed.
These considerations explain both why it fell to Lister, the other gentlemen and the manufacturers to initiate investigations, and the specific tactics they adopted to secure evidence. Since 1764 an association of manufacturers had employed several inspectors to detect embezzlement by outworkers. The meetings decided to use one of them 'to get acquainted with some of the persons reputed to be principal offenders, and if possible make a discovery'. However, mere association with offenders did not produce suitable evidence. Therefore, at a meeting on 28 July 1769, Lister and John Stanhope suggested that they should be given a free hand to use the inspectors in any way 'they thought necessary and expedient to detect the persons guilty'. This was agreed. The magistrate and the lawyer had decided to employ two of the inspectors as agents provocateurs who would secure irrefutable evidence by dealing in coin with known offenders. This would involve the inspectors in breaking the law themselves. Consequently: they were promised immunity from proceedings and 'reasonable satisfaction for their trouble'.43
The need for secrecy was such that use of the inspectors as agents provocateurs was divulged by Lister and Stanhope only to John Hustler, the chairman of the manufacturers' association, and to Samuel Lister of Manningham, a namesake and relative of the justice who was an attorney. The latter took down the inspectors' depositions in preference to Lister's regular clerk, in order to ensure concealment. Between 5 August and 5 September the two inspectors supplied full-weight coins at a premium for clipping to at least seven men. On 9 September Lister committed two of these men to York Castle on the inspectors' evidence. Another, who was not committed to York at this stage. was taken into custody locally and on 10 and 14 September swore depositions before Lister against twelve offenders, which were subsequently to provide grounds for further committals.44
Lister, Stanhope and the manufacturers had not been the only injured parties using secrecy and deception to breach the yellow traders' solidarities during the summer of 1769. William Deighton, the Halifax supervisor of excise, had adopted similar tactics, although it is unlikely that either party knew of the other's activities before September. By the beginning of that month, Deighton's investigations were also bearing fruit in the form of committals to York Castle. In the face of this dual-pronged assault, a large number of people associated with the yellow trade absconded from the Halifax area about this time.45
These initial successes for the campaign against the trade marked the culmination of Samuel Lister's career as a justice of the peace. After mid-September he played no further part in the investigations and in just over two months he was dead The subsequent history of the coining affair was a tortuous one, during which doubt was cast on the usefulness of the evidence Lister had been instrumental in securing and, indeed, on the very notion that the yellow trade could be crushed by bringing the coin laws to hear against its practitioners. However, irrespective of whether the assumptions upon which Lister acted in the affair were valid, his central role in initiating and directing the process of criminal investigation is not in question.
Samuel Lister's investigatory activities in 1756 and 1769 were distinctive; his contemporaries remarked on them as such. Yet the question remains why that should be so. Was Lister's behaviour in these episodes distinctive because he responded in ways that other magistrates would not have contemplated, or because most magistrates never encountered circumstances that might have occasioned such activity? The dearth of quantitative and qualitative studies of the management of criminal business by other mid-eighteenth-century county magistrates makes it difficult to provide a confident answer. The difficulty is exacerbated by the fact that evidence of Lister's role in 1756 and 1769 derives from sources, particularly correspondence, that are not available for the vast majority of either magistrates or serious criminal cases.
Mid-eighteenth-century county magistrates dealt with relatively few serious criminal offences against property. Even Lister, one of the most active magistrates in the West Riding, was involved in the committal for trial at York Assizes of only nineteen suspected offenders in the fourteen years 1755 to 1768. Although other cases almost certainly came to his notice which did not result in committals, it is most unlikely that there were enough of these to make anything other than a very infrequent contribution to Lister's work as a magistrate. If someone as active as Lister encountered the general run of serious criminal offences so infrequently, episodes like those in 1756 and 1769 must have been altogether exceptional events in the justicing career of any individual county magistrate.
Nevertheless, it is important to bear in mind that, infrequent though serious criminal offences against property were for the individual justice, this need not necessarily detract from their significance. After all, it was precisely these offences, along with murder, that were the particular object of both popular and official concern about crime.
There is some comparative evidence to suggest that Lister's activity in the 1756 and 1769 affairs was unlike that of most other county magistrates in similar circumstances For example, he appears to have been the only one of the local magistrates to take the initiative against the Yorkshire yellow trade in 1769, although this may have been as much a testimony to his closer links with aggrieved local businessmen as a manifestation of a generally more assiduous approach to such criminal business. It was extremely rare for a magistrate to place an advertisement about a suspected offender which carried his own name in a London paper, as Lister did in 1756. However. it is important to bear in mind that similar advertisements, bearing the names of the local constables, gaolers or house of correction keepers were relatively more common (especially in provincial newspapers) and may have been inserted on the instructions of magistrates.
At a general level. it is clear that the disincentives to a county magistrate adopting an active policy under such circumstances were many. and the incentives few. The disincentives were not simply a matter of unfamiliarity, cost, inconvenience, occasional personal danger and vulnerability to legal proceedings. The kind of initiatory. probing role adopted by Lister could come perilously close to contravening the codes which dictated the behaviour acceptable among men of his station. Sir John Fielding was to acknowledge this in the l770s when he commented that 'magistrates in the country however public spirited they may be, can only back our warrants, recommend peace officers to execute them, and examine offenders when taken, and such like; but ... in general much more is required, in case of ... pursuits, than is proper to ask a magistrate, or possible for his superior station to admit of'.46 Behaviour like Lister's. if successful. could enhance a magistrate's authority in a locality and earn him praise from interested parties, fellow justices, the Lord Lieutenant and the judges at Assizes. But it ran the risk of gaining him a reputation as an interfering and ungentlemanly busybody.47 Nevertheless, this was a risk some mid-eighteenth-century magistrates were prepared to take. Not merely in the West Riding, but in many other counties, the bulk of the serious criminal business (and of other magisterial duties) was handled by a small proportion of the acting justices. Some of these men were, like Lister remarked upon by their contemporaries for their exceptional activity both in the number of cases they handled and the manner in which they were prepared to deal with them.48 Whether they differed from their colleagues on the bench in other respects is not yet clear. Later in the century they were often to be clerics, but this was not the case at mid-century. As far as Lister is concerned, experience of his father's magistracy and his own legal training may have predisposed him to be active. But irrespective of how his background influenced the manner in which he discharged his responsibilities under the criminal law, his own explanation is clear enough: 'I think it my duty not only as a magistrate. but as a private person to do all that I am able to bring villains, to justice'.49
2. For examples of recent studies of the eighteenth-century bench see E Moir, Local Government in Gloucestershire, 1775-1800, (Bristol, 1969), and Glynne Welby, 'Rulers of the Countryside; the justice of the peace in Nottinghamshire, 1775-1800', Transactions of the Thoroton Society, vol. 78, (1974) JJ Tobias in his Crime and Police in England 1700-1900, (London, 1979), pp.25-8, does briefly discuss magistrates' criminal business, asserting that they often took an active part in detection, but provides no substantiation for this claim. (back)
3. This definition of 'serious offences' as those that were tried at Assizes is inevitably arbitrary. In theft cases in the mid-eighteenth century there was in practice no very strict line of demarcation between those heard at Assizes and those heard at Quarter Sessions. Even thefts that were technically capital could be re-defined in such a way that they were treated as petty larceny at Quarter Sessions. Nevertheless, there was a broad differentiation whereby aggravated thefts and those of more valuable property tended to go to Assizes. (back)
4. William Cudworth in Rambles Round Horton, (Bradford, 1886) suggests two different years of birth. In the pedigree between pages 84 and 85 Lister is said to have been baptised on 17 October 1730, but on page 87 the year of his birth is given as 1714. The earlier date appears to be the correct year of birth as he was admitted as an attorney in 1738. (back)
5. Public Record Office (hereafter PRO), C234/44, Lord Chancellor's Fiats, West Riding of Yorkshire; C 193/45, Crown Office Dedimus Book, 1746-1789; IND 4599, Court of Common Pleas, Attorney's Admissions, 1729-1751. (back)
7. See J. Styles, "Our Traitorous Money Makers" The Yorkshire Coiners and the Law 1760-83, chapter 5, in J. rewer and J. Styles (eds.), An Ungovernable People The English and their Law in the seventeenth and eighteenth centuries, (London 1980), pp 188, 206-7. (back)
8. Analysis of the numbers and distribution of acting justices is based principally on PRO, C 193/45, Crown Office Dedimus Book, 1746-1789; West Yorkshire County Record Office (hereafter WYCRO), Q50/1/20-26, West Riding Quarter Session Order Books, 1746-70, Q42 & Q43, West Riding Justices' Qualification Oath Books, 1745-99, and my own file of magistrates' biographies.
9. The twelve parishes were Kirkheaton, Kirkburton, Almondbury Huddersfield, that part of Rochdale in Yorkshire, Halifax, Bradford, Birstall, Mirfield, Calverley, Bingley and Keighley, Hartshead cum Clifton, a detached portion of Dewsbury parish surrounded by some of the above, is also included.
11. Sheffield City Library, Wentworth Woodhouse Muniments, R 11/2, Rockingham to John Royds, 25.11.1769 (I should like to thank Earl Fitzwilliam, the Trustees of the Wentworth Woodhouse Estates Co and the Sheffield City Library for their permission to quote from this document.) (back)
16. PRO, ASSI 45/25/1 to 45/29/3 Northern Circuit Assize Depositions, 1753 to 1770. Depositions survive in all but one of the cases at Assizes between 1755 and 1770 in which Lister committed the offenders to prison. In some instances it is possible to supplement the evidence of the depositions with materials from other sources, particularly newspapers. (back)
17. In two of these it is possible that some approach was made to Lister before the arrest of the suspected offender, in spite of the absence of any mention of it in the depositions. Nevertheless, the primary role of the victim in undertaking the investigations is not in doubt. (back)
20. However, it is possible that up to the 1760s local magistrates granted general search warrants in such cases. If so, victims of offences against property may have been accustomed to approach Lister and his fellow justices more often and more indiscriminately than this paragraph suggests. See Styles, "Our Traitorous Money Makers" p. 208 and note 177.
21. But it is important to emphasise that recent research suggests the detective capacity of the CID in equivalent modern cases is more limited than the popular image of the detective might suggest; see, in particular, D Steer, Uncovering Crime: The Police Role, (London, 1980). (back)
23. PRO, ASSI 45/26/1/109-112A. Although Lister was obviously willing to bind over these witnesses, the available evidence does not indicate whether this supplementary evidence was actually secured on Lister's instructions. However, it is likely that this was the case. (back)
27. The surviving evidence does not indicate exactly by whom Wilkins was brought before Lister, or the precise nature of the accusation they made against him. However, it is unlikely that any proceedings against him for his petty frauds, whether at common law as a cheat, or, perhaps, as an idle and disorderly person under 17G II c.5 could have kept him in custody for very long. (back)
30. Bath City Record Office, Bath Council Minute Books, vols. 5, 6 and 7, 1728-1761.
31. BCL Deeds, 16/14/10, draft on reverse of Lister to Richard Wilson, 20.1.1756.
32. This was probably the father of Sir George Paul, the prison reformer.
35. The editions of the General Evening Post which carried Lister's advertisement do not appear to have survived. However, Lister's papers on the affair do include a draft of the advertisement. It is possible to calculate the charge by comparing the draft with the run of the General Evening Post for 1736 held at the Guildhall Library, London, which carries the prices charged for each advertisement. It is unlikely that Lister was recompensed for this or his other expenses in the affair. (back)
44. Lister had taken some depositions concerning clipping and coining at the end of July 1769 which appear to have nothing to do with the inspectors' endeavours. However, they did not lead to any committals. See PRO ASSI 45/29/3/50, 59, 65, 66. (back)
46. Cumbria County Record Office (Kendal), WQSR 384/17, Westmoreland Sessions Roll, Appleby Sessions, Easter 1775, undated printed circular headed 'To the Acting Magistrates of the Counties at large throughout ENGLAND, in their Quarter Sessions assembled'. (back)
47. In boroughs, where magistrates usually held their office by virtue of being mayor or alderman and were normally in trade, the constraints of gentlemanly behaviour were probably not so great. Indeed, activity as a justice may have been a much more important ladder to local or regional influence for such men than it was for county magistrates. This could explain the fact that some of the provincial magistrates most active in criminal investigation in the second half of the eighteenth century were borough justices, for example Alderman Hewitt of Coventry and Mr Jones of Worcester. (back)
© 1982, John Styles MA and The Bradford Antiquary