¹After 1718, defendants convicted of clergyable offenses were frequently sentenced to transportation and defendants convicted of non-clergyable offenses were often sentenced to hang and then pardoned on condition of transportation. Imprisonment did not become an important part of the system until the end of the century.

²The procedure I am describing here was an ordinary criminal prosecution commenced and controlled by a private party acting on behalf of the crown; the case would be Rex v X. There was also a procedure, still existing but little used, under which certain private parties could initiate private suits, called appeals, to impose criminal penalties. According to Blackstone, "As this method of prosecution is still in force, I cannot omit to mention it: but as it is very little in use ... . An appeal of felony may be brought for crimes committed either against the parties themselves or their relations. ... If the appellee be found guilty he shall suffer the same judgment as if he had been convicted by inditment: but with this remarkable difference; that on an indictment, which is at the suit of the king, the king may pardon and remit the execution; on an appeal, which is at the suit of a private subject ... the king can no more pardon it than he can remit the damages recovered in an action of battery." 4 Blackstone *312-316.

³The statute was vague about exactly who got the rewards; the prosecutor often shared them with witnesses and informers. Ruth Paley, "Thief-takers in London in the Age of the McDaniel Gang, c. 1745-1754," in Hay and Snyder (1989) pp. 316-322.

⁴In one case of entrapment, the prosecutors, who had set up the offense, stood to gain rewards that totalled [[sterling]] 120. Ruth Paley, "Thief-takers in London in the Age of the McDaniel Gang, c. 1745-1754," in Hay and Snyder (1989) p. 302.

⁵Contemporary writers seem to have taken it for granted that entrapment was a bad thing. They appear not to have considered the possibility that, even if a particular act of entrapment created a crime that would otherwise not have occured, the net effect might be to reduce crime by making criminals less willing to trust potential confederates.

⁶This change did not entirely eliminate the problem. In the nineteenth century, there were charges that police sometimes conspired with attorneys to convict defendants. The attorneys would be reimbursed by the court for their services, and would then kick back some of the money to the police. Such a scheme depended on the court being willing to pay more in expenses than the real cost to the attorney of the services provided.

⁷As suggested by the previous note, the introduction of paid police did not eliminate the problems that had been associated with amateur thief takers. Paid police, one of them a Bow Street Runner, were involved in an entrapment scandal in 1816, and several Bow Street runners seem to have accumulated substantial fortunes, presumably from some combination of rewards and payments for compounding (Radzinowics Volume II, pp. 268, 333-337). Juries distrusted police testimony in the early 19th century for the same reason they had distrusted private prosecutors and their witnesses in the mid-18th century-the suspicion that it was given in the hope of receiving a reward for conviction. (Radzinowicz II, pp. 344-346.) Similar problems of entrapment and official perjury are not unknown today, even though police rewards take more indirect forms.

⁸Under some circumstances, these punishments became more than minor; a sufficiently unpopular convict might be attacked in the pillory, sometimes even killed. Beattie 466-468.

⁹In 1576 "the requirement that the clergied offender be turned over to the ordinary to undergo purgation was abolished. Henceforth, the successful pleading of clergy was to be followed by immediate discharge." (Beattie p. 142) The church courts still played a role in "wills and marriages and occasional cases of slander." Douglas Hay, "Property, Authority and the Criminal Law," p. 30 in Albion's Fatal Tree.

¹⁰Elizabethan law had "authorized judges to imprison clergied offenders for up to a year. That appears rarely to have been implemented, however." Beattie 492.

¹¹A defendant might spend as much as six months in jail waiting to be tried. The jails were both unpleasant and unhealthy; see Beattie pp. 298-309. "Indeed 1750 saw the most memorable outbreak (of jail fever) of the century because it carried away not only dozens of prisoners but, following the April session at the Old Bailey, more than fifty people who had been in court, among them the Lord Mayor of London, two judges, an alderman, a lawyer, a number of court officials, and several members of the jury." (p. 304)

¹²From 1718 on, many felons who pled clergy (but not those guilty of manslaughter: Beattie p. 88) were transported for 7 years. An earlier attempt to replace clergyable discharge with transportation in 1663 failed. Beatie p. 471.

¹³By the end of the sixteenth century, clergy had been removed from, among other offenses, petty treason (killing one's "lord, master or sovereign immediate"), murder, housebreaking (when there was someone in the house who was "put in fear"), highway robbery, horse stealing, theft from churches, pocket-picking and burglary. Most forms of larceny remained clergyable. (Beattie p. 144)

¹⁴Taking goods from a house when the owner was present and put in fear, and breaking into houses, shops, and warehouses and stealing to the value of five shillings (1691); shoplifting to the value of five shillings and thefts to the same value from stables and warehouses (1699); theft from a house or outhouse to the value of forty shillings, even without breaking in and even if no one was present (1713), sheep stealing (1741), cattle theft (1742), theft from a bleaching ground of linen or cotton cloth worth ten shillings or more (1731, 1745), theft from a ship in a navigable river or from a wharf goods valued at forty shillings or more (1751), theft from the mails (1765). (Beattie pp. 144-145).

¹⁵Examples cited by Beattie (p. 424) include " theft of twenty-three guineas from a house ...; lace valued at more than a hundred pounds in the indictment ...; gold rings and jewelry ... valued by the owners at more than three hundred pounds ... ." All of these were "found by the jury to be thirty-nine shillings' worth."

¹⁶The figures quoted here are based on the assize files of the Home Circuit and the quarter sessions rolls of Surrey, and limited to those years from 1660 to 1800, a total of about a hundred, for which complete indictment evidence was available. The sample is described in detail by Beattie in his Appendix, pp. 639-643.

¹⁷Beattie (1986) p. 480

¹⁸Beattie suggests that transportation had begun to go out of favor a few years before the revolution. His explanation is that it was no longer believed to provide either adequate punishment or adequate incapacitation. Trans-atlantic voyages became substantially safer and less expensive during the fifty years after 1720. A transportee could escape from his indenture or (if he had money) avoid it by paying off the captain who transported him, and return to England illegally.

¹⁹I am not considering here the use of workhouses and other forms of confinement for those not guilty of serious offenses, such as vagrants.

²⁰The rate of homicides known to police in England from 1906-1910 was 0.8 per 100,000. Ted Robert Gurr, "Historical Trends in Violent Crimes: A Critical Review of the Evidence," in Crime and Justice: An Annual Review of Research v. 3, Michael Tonry and Norval Morris eds. Homicide indictment rates reported by Beattie fell from 8.1 per 100,000 (1660-1679) to 0.9 (1780-1802) in the urban parishes of Surrey, from 4.3 to 0.9 in the rural parishes of Surrey, and from 2.6 to 0.6 in (rural) Sussex.

²¹Beattie pp. 108-109. An interesting project, which so far as I know has not been done, would be to examine statistics for homicide indictments during the period just before and during the introduction of professional police, in an attempt to determine whether there was a significant change in the ratio of indictments to homicides.

²²Philips cites the case of Mr. James Bailey, a member of an association for the prosecution of felons, who succeeded in recovering his stolen horse and prosecuting the thief. His total outlay on the case came to [[sterling]] 66.9s.7d. Philips p. 115. A horse was "worth from [[sterling]] 10 to [[sterling]] 50." Philips p. 116.

²³Of the [[sterling]] 66.9s.7d laid out by James Bailey, [[sterling]] 38.8s.6d were repaid by the court.

²⁴My description here is based on David Philips, "Associations for Prosecution of Felons" and P.F. R. King, "Prosecution Associations and their Impact in Eighteenth-Century Essex" in Policing and Prosecution in Britain: 1750-1859, Douglas Hay and Francis Snyder, Eds. and ignores considerable variation in the actual institutions. A few covered more than a local area. Some charged different amounts to members of different status.

²⁵David Philips, "Associations for Prosecution of Felons" in Policing and Prosecution in Britain: 1750-1859, Douglas Hay and Francis Snyder, Eds. offers estimates of the number of such associations ranging as high as 4000 associations around 1839, and thinks "at least 1000" a good working figure.

²⁶A related reason for not joining would be the imperfect privatisation of deterrence. The less prominent a potential victim was, the less likely it was that a potential thief would know enough about his commitments to be deterred by them. And private deterrence would be useless against crimes, such as most highway robberies, committed by criminals who did not know who their victims were.

²⁷Ryder Shorthand documents, p. 33 : R. v. Ann White:

"She came again on Monday when she came and asked for her gown, and she would have it where she found it, but I would not unless she would prosecute the prisoner." (testimony of Francis Smith, pawnbroker)

"On a conviction of larceny, in particular, the prosecutor shall have restitution of his goods, by virtue of the statute 21 Hen. VIII, c. 11." 4 Blackstone *362.

²⁸Beattie (p. 457) argues that fines for minor offenses were largely token payments to show that the two parties had reached agreement. "A larger fine might well result when such agreement was not forthcoming, and its threat, along with the further threat that the nonpayment of a large fine could result in a period in jail, was clearly used by the courts as a way of persuading a recalcitrant prisoner to come to terms with the complainant." Beattie cites the Recorder of London in 1729, ... "In discussing an assault and battery, he said that it was `usual in these cases for the Defendant to make satisfaction to the Prosecutor for his wounds, and costs and charges -before the Court sets the fine ... which is usually greater if a Defendant won't make a Prosecutor easy as the Court directs." ... `...and then if he forbears to appear and prosecute [the defendant] will be discharged, and all charges of a Tryal saved, which would be a greate expence.'" (Beattie, pp. 457-458)

"It is not uncommon, when a person is convicted of a misdemeanor, which principally and more immediately affects some individual, as a battery ... , for the court to permit the defendant to speak with the prosecutor, before any judgement is pronounced; and if the prosecutor declares himself satisfied, to inflict but a trivial punishment. This is done to re-imburse the prosecutor his expenses, and make him some private amends, without the trouble and circuity of a civil action. But it surely is a dangerous practice ... prosecutions for assaults are by these means too frequently commenced rather for private lucre than for the great ends of public justice." 4 Blackstone *363.

²⁹"The compounding of penal actions, originally allowed, was made illegal by 18 Eliz.c. 5, made perpetual by 27 Eliz. c. 10. " Radzinowicz, volume II p. 138 fn 2. Also see Blackstone, Bk IV, chapter 10 parts 10 and 14.

³⁰"Public Prosecutions In England, 1854-79: An Essay in English Legislative History" by Philip B. Kurland and D.W.M. Waters, Duke Law Journal, 1959 number 4, p. 512.

³¹The following are a few examples I have come across:

"Ainsworth was caught stealing, begged Blundell repeatedly not to prosecute, and entered into negotiations to work on one of his master's houses in return for forgiveness." Albion's Fatal Tree, p. 41.

"Mrs. Woodb. asked Ann Wh. to pay the money and she said she would provided there would be no more trouble afterwards." Ryder Old Bailey Notes, p. 34, R. v. Ann White. This was from the testimony of Francis Smith, pawnbroker. Mrs. Woodburn was the owner of the stolen gown; Ann White was the mother of the accused thief, also named Ann White. The money was being paid to Smith in order to redeem the gown, in order that it could be returned to its owner. The elder Ann White paid the money, but her daughter was nonetheless charged and convicted.

Jo. Watkins, father of prisoner. "The prosecutor has been with me, and wanted money to stop the proceedings, he having been at great expense. But I refused. ... He said, would I give nothing to save my child?" Ryder Old Bailey Notes, p. 53. The girl, who was accused of having stolen and pawned a laced waistcoat, was acquitted, apparently because too young (11) to have sufficient discretion to be held guilty of a felony.

³²Peter King, "Decision-makers and Decision-making in the English Criminal Law, 1750-1800," 27 The Historical Journal 25-58 (1984). Beattie asserts that "the vast majority of those committed by magistrates to stand trial for felonies were charged and brought to court, ..." but does not provide any actual numbers. (Beattie p. 401)

³³Of course, a criminal system could also offer the defendant the choice between hanging and paying a fine. As we will see in Part VI below, such a transaction may have been implicit in the pardoning system, although the payment took a non-pecuniary form. But the court might be less competent at finding the right fine-the highest that the criminal (and, possibly, his friends and family) were prepared to pay-than a private prosecutor pursuing his private interest.

³⁴This may or may not be true if the prosecutor's principle objective is deterrence. Using perjury to convict a defendant who potential offenders believe is innocent does not deter. Using perjury to convict a party who potential offenders believe is guilty does.

³⁵The problem was also recognized by the law in the related context of informers who were entitled to a part of the fine paid by those they informed against. "When suing for a penalty, an informer was considered an incompetent witness unless made competent by statute." Radzinowicz, Volume II p. 139.

³⁶John Langbein, "Albion's Fatal Flaw," 98 Past & Present 96-120 (1983).

³⁷This argument is made repeatedly in Albion's fatal tree, in particular in "Property, Authority and the Criminal Law" by Douglas Hay. It is persuasively rebutted by John Langbein in "Albion's Fatal Flaw," 98 Past & Present 96-120 (1983). For a re-rebutal, see Linebaugh, Peter. "(Marxist) Social History and (Conservative) Legal History: A Reply to Professor Langbein." New York University Law Review 60 (1985): 212-43.

³⁸See Douglas Hay, "Prosecution and Power: Malicious Prosecution in the English Courts, 1750-1850" in Policing and Prosecution in Britain: 1750-1859, Douglas Hay and Francis Snyder, Eds.

³⁹The same phenomenon in modern civil law is described as searching for potential defendants with deep pockets.

⁴⁰Conspiracies between poachers and informers were alleged to have occurred in the enforcement of the game laws. "If a friend laid an information before the keepers could, it prevented their prosecuting, for the informer had rights in the fine. Five pounds sterling went from the poacher to the JP, then to the friend (as informer) and back again to the poacher over a pint in the alehouse." Douglas Hay, "Poaching and the Game Laws on Cannock Chase," p. 198 in Albion's Fatal Tree. Hay asserts that this was a common trick, citing Some Considerations on the Game Laws, and the Present Practice in executing them; with a hint to the non-subscribers, 1753 , p. 26. I know of no similar example in the context of more serious offenses.

⁴¹According to Blackstone, 2 Comm. *437, where a statute provides a penalty payable to the informer, the first person who brings an action "obtains an inchoate imperfect degree of property by commencing his suit: but it is not consummated till judgement; for, if any collusion appears, he loses the priority he had gained."

⁴²A defendant could defend himself against prosecution by a plea of autrefoits acquit or autrefoits convict--having been either acquitted or convicted in one trial, he could not be tried again (4 Blackstone *335-336). It is not clear whether any similar defense existed for a defendant who had been charged but not tried, due to the failure of the prosecutor to show up at the trial. The equivalent situation in a civil case resulted in a non prosiquiter being entered; the plaintiff owed costs to the defendant and a fine to the crown, but could reinstitute his suit after paying them (3 Blackstone * 296).

⁴³Check if this is right.***

⁴⁴Blackstone, 2 Comm. *437.

⁴⁵For more detailed discussions of punishment inefficiency and its relevance to the choice of punishment, see D. Friedman, "Reflections on Optimal Punishment or Should the Rich Pay Higher Fines?," Research in Law and Economics, (1981); "Should the Characteristics of Victims and Criminals Count? Payne v Tennessee and Two Views of Efficient Punishment," XXXIV Boston College Law Review No.4, pp.731-769 (July 1993).

⁴⁶The inefficiency is slightly greater than one if we include the cost of hiring the executioner. It might be less than one if the state obtained some direct benefit from execution.

⁴⁷"Duncan Campbell was paid about thirty-eight pounds a year for each prisoner on board his ships. The government got the benefit of their labor, but it came nowhere near that figure in value. Beattie (1986) p. 593, citing Johnson, English Prison Hulks, p.9.

⁴⁸My description of the galley slave system is based on Law, Magistracy and Crime in Old Regime Paris, 1735-1789, by Richard Mowery Andrews

⁴⁹Andrews p. 326. He does not offer either the evidence for that conclusion, nor any numbers that could be used to compare the gains with the associated costs.

⁵⁰John Langbein, "The Historical Origins of the Sanction of Imprisonment for Serious Crime," JLS 5 (1976) 35-60.

⁵¹Langbein asserts in a footnote that "the use of captives in the galleys had been known in antiquity, and may have been a more or less continuous process in the Eastern Mediterranean into the Renaissance," and cites Paul Masson, Les galè res de France, 20 Annales de la Faculté des lettres d'Aix 7, 72 ff note 24 at 8-10. According to Casson (pp. 322-328) this is mistaken. In a careful and convincing discussion, he argues that, in classical antiquity, neither slaves nor convicts were used to row warships save in rare emergencies.

One obvious conjecture is that the use of slave rowed galleys for military purposes was associated with the increasing use of cannon in naval warfare. As long as the usual form of combat involved a substantial element of boarding and hand-to-hand combat, as seems to have been the case both for classical naval engagements and during the viking period, a ship whose rowers could not be trusted with weapons was at a serious disadvantage.

⁵²Similar considerations appear in the literature on plantation slavery in the new world; there too it has been argued that particular activities were well suited to slavery because they involved groups of workers working together at tasks that were easily standardised and supervised (the "gang system"). Robert Foley, Without Consent or Contract, pp. 21-45, 72-80.

⁵³Beattie suggests that the reason for the change in policy was that the financial situation of the English government had improved considerably by 1718. (p. 504)

⁵⁴This ignores those transportees who returned illegally before their sentences were up. It appears from Beattie (1986), pp. 540-541, that such returnees became a significant problem during the second half of the century. Seven years was the usual sentence of transportation (and term of indenture) for clergyable felonies, fourteen for non-clergyable felons pardoned on condition of transportation. Presumably many of the transportees either died before completing their terms or chose to remain in the new world.

⁵⁵Law, Magistracy and Crime in Old Regime Paris, 1735-1789, by Richard Mowery Andrews, pp. 354-5.

⁵⁶For a detailed analysis of the arguments that judges offered for and against pardons, and the source of character testimony in favor of pardons, see Peter King, "Decision-makers and Decision-making in the English Criminal Law, 1750-1800," 27 The Historical Journal 25-58 (1984).

⁵⁷For a more detailed discussion of price discrimination in punishment, see David Friedman, "Reflections on Optimal Punishment or Should the Rich Pay Higher Fines?," Research in Law and Economics, (1981).

⁵⁸Of course, the friends may expect to be repaid by the felon in future favors.

Boswell's memoirs contain a detailed first hand description of his unsuccessful attempt to get a death sentence converted to transportation. Boswell was a lawyer in the Scottish legal system in the eighteenth century. The convicted defendant had been his first criminal client. Boswell got him off that time but failed to prevent his conviction in another case years later. The account is broadly consistent with the somewhat conjectural interpretation I have offered; it is clear that Boswell is using his influence with various people who have no direct connection to the case in order to get them to use their influence in his client's behalf. See Boswell for the Defense: 1769-1774, edited by William K. Wimsatt Jr. and Frederick A. Pottle, pp. 276-338. [Note added to webbed paper after publication]

⁵⁹Richard Posner, The Economics of Justice 193-195.

⁶⁰ This point is made in"Property, Authority and the Criminal Law" by Douglas Hay in Albion's Fatal Tree, pp. 48-49.

⁶¹See John Langbein, "The Historical Origins of the Sanction of Imprisonment for Serious Crime," JLS 5 (1976) 35-60.

⁶²Throughout this discussion, I am considering the optimal level of prosecution while holding fixed other relevant features of the system, such as the schedule of penalties and the rules of evidence. By the optimal level of deterrence, I mean the level that is optimal given the rest of the system as it was; I am not suggesting that even the best system of private deterrence would make the entire system optimal.

⁶³It is not important at this point in the analysis whether we think of the supply as a number of people, and assume they are all full time thieves, or whether we think of supply in terms of man hours of theft per year, some or all of which may be provided on a part time basis.

⁶⁴David Philips, "Associations for Prosecution of Felons" in Policing and Prosecution in Britain: 1750-1859, Douglas Hay and Francis Snyder, Eds.

⁶⁵D. Friedman, "Efficient Institutions for the Private Enforcement of Law." Journal of Legal Studies, June (1984)., Koo Hui-wen and I.P.L. Png, "Private Security: Deterrent or Diversion?" IRLE (1994) 14, 87-101.

⁶⁶Alternatively, casing a joint takes a fixed length of time, and the criminal has a conventionally declining marginal utility for leisure.

⁶⁷I refer to D(R) as a demand curve because it plays the same role in determining the equilibrium level of casing that an ordinary demand curve plays in determing the equilibrium level of output. It differs from an ordinary demand curve in other respects. Since the transaction between thief and victim is not a voluntary one, the amount to be stolen does not measure the value produced by theft; the demand curve is not derived from a marginal value curve, and the area under it is not consumer surplus.

⁶⁸I have not given a complete verbal account of the assumptions underlying the model. In particular, I have assumed without comment that the cost of casing one joint does not depend on the availability of other, nearby, joints to be cased. That is a plausible assumption if we imagine that the cost of going to and from the target is a negligible part of the cost of casing it, either because looking for opportunities is costly, or because targets are dense enough so that it is only a short distance from one to another. If I drop that assumption, an owner who makes his target less attractive confers an external benefit on other owners, by raising the cost to criminals of casing their targets.