In 1732, Elizabeth Caton was tried for stealing a watch from a gentleman identified as C. B. Caton’s trial is typical of contemporary English pickpocketing cases. To begin, the defendant was a woman and the prosecutor (who, in the contemporary criminal justice system, was also the victim) was a man. In addition, although the charge was for theft and not soliciting sex (which was not strictly illegal at the time), sex nonetheless featured most prominently in the testimonies. C. B. alleged that Caton had lured him into a pub under the guise of sharing her company, all the while intending to filch whatever she could. In her defence, Caton testifed that C. B. took her to a private room, offered her money for sex (to which she admitted to acquiescing out of financial necessity) and asked that she “go and fetch some Rods to whip him.” C. B. denied this, but the judge was sceptical. He asked C. B. outright if he was in the habit of “pick[ing] up Women, and carry[ing] them into a private Room without any Design?” The jury was equally unimpressed; the record shows that Caton was acquitted despite having been discovered with the stolen watch concealed on her person.
Caton’s crime was a capital one.* Considering the gravity of the situation, it initially seems surprising that Caton chose to discuss sex unabashedly in her defence. As a poor, early eighteenth-century English woman, Caton’s character (her credibility, her employability) hinged on her reputation for chastity. Yet she did talk about selling sex, and it is this choice, not her theft, that gives her some features of a historical hottie.
Eighteenth-century England had jury trials. And, since there were property restrictions controlling jury eligibility, juries were comprised mostly of men of the middling sort. Like today, most defendants came from the working classes, and were thus tried by their “social superiors.” Certainly, this was the case with Caton, who discussed her poverty openly. Within this judicial system, Caton’s options were: 1) to convince the jury that she was reputable, or 2) that C. B. was even less reputable than she. Caton recognised this and worked the system to her advantage by giving testimony that cast doubt on C. B.’s sexual reputation. She accused him outright of harbouring sadomasochisitic desires. Or, in the eyes of contemporaries, of outlandishly subverting the social order by allowing a woman, especially a “socially inferior” one, to dominate him.
It is important to be mindful that, although Caton benefitted in the courtroom by defaming the sexual morality of C.B., she was also tarnished by the mutual sexual defamation. Nevertheless, she played a patriarchal and deeply status-based judicial system against itself. By convincing a jury of her “social superiors” that a gentleman—a man with the responsibility to exemplify goodly morality to his social inferiors—had fostered this kind of disorderly behaviour, she used repressive tropes to her own advantage and saved her life.
*Judicial discretion in this era was notorious, however women thieves were sometimes hanged, imprisoned or transported to penal colonies, so it was by no means a foregone conclusion that a pardon, full or otherwise would be forthcoming.
OBPO, 14 January 1732, trial of Elizabeth Caton, http://www.oldbaileyonline.org/browse.jsp?id=t17320114-39-defend363&div=t17320114-39#highlight (accessed 4 December 2015).
John M. Beattie, Crime and the Courts in England, 1660-1800 (Princeton: Princeton University Press, 1986), 35.
Olwen Hufton, The Prospect Before Her: A History of Women in Early Modern Europe (London: HarperCollins Publishers, 1995), 267-269.
John H. Langbein, “The Criminal Trial Before the Lawyers,” University of Chicago Law Review 45, no. 2 (Winter 1978): 305.
———. The Origins of Adversary Criminal Trial. Oxford: Oxford University Press, 2003.
Robert B. Shoemaker, Prosecution and Punishment: Petty Crime and the Law in London and Rural Middlesex, c. 1660-1725 (Cambridge: Cambridge University Press, 1991),