Crime and Punishment in Early Britain
©John Lea 2006
In order to understand the processes whereby the modern system of crime and punishment emerged we must begin with a brief look at the society that preceded it.
THE MIDDLE AGES
Europe during the middle ages--roughly the 12th to the mid 15th-- (also known as the medieval period) was a relatively unchanging society. That is not to say it was uneventful. On the contrary, the continent was assailed by plague and warfare. But social structure was much the same in 1400 as it had been in 1100.
A society governed by personal relations
These unchanging rural societies consisted of very small towns and fortifications and castles with a surrounding rural hinterland of agricultural estates in which generations of serfs worked the land and paid annual tithes to the church and the landlords. The latter, the great aristocracy of Barons, Kings and warrior Knights were not landowners in the modern commercial sense. Land was not bought and sold but instead held in trust from King or Church. The same applied to the serfs who were not wage labourers who could be hired and fired by an employer but members of communities who held their land by custom and tradition. They gave a certain proportion of the produce of the land to the landlord and church. Again, this was regulated by custom and tradition
In these localised unchanging communities social relations were overwhelmingly face to face personal relations between people who knew each other. Society was much more like a collection of families with the local landlord as head and the King as overall head who ruled his kingdom as head of a family. Social relations, in other words, were more like relations between family members. Loyalty and power were thus personal and local, owed to your community, landlord, priest and king rather than to abstractions such as 'citizenship'. Mediaeval society was largely a system of private power; of the particular loyalties and bondage of specific communities to their landlords rather than a framework of universalised legal relations between abstract citizens. The modern society of commercial relations between strangers was very. Restricted. Merchants and traders existed of course and gathered at periodic fairs and markets held by permission of the King or local landlord. But generally there was little in the way of a free market for basic everyday goods. Prices of produce grown locally were governed by custom and tradition rather than supply and demand.
The concrete nature of law and crime
Crime and punishment were intertwined with this system of personal power and the particularly localised nature of social relations. It is important to understand that the modern notion of crime presupposes a notion of all individuals in a society as equal citizens and that anyone who violates the law can be defined and treated as a criminal. In modern society the committing of a crime generally changes your social status. You cease to be a doctor, a teacher, a military officer, an unemployed labourer or whatever your social status is, and become, in the eyes of the law, a criminal. Criminalisation negates your social status. But in medieval society criminality could not be disconnected from who you were and your particular relations of family, community and social status. Thus, rather than violation of nationally enforced criminal laws leading to automatic criminalisation, deviance was always a violation of specific localised norms of blood, kinship and personal obligation between specific groups of individuals. Who was involved was as important as what had been done. And the law "... although in England essentially the common law of the realm, was often modified by local custom, local laws, and local opinion on what might be the best way of dealing with specific offenders and offences." (Sharpe 1996: 103).
The priority and seriousness attributed to particular violations would depend on which set of particular interests and obligations were being threatened rather than any generalised yardstick of harm. It might be one thing to rob or kill a member of your own family, another to rob or kill a stranger; one thing for a nobleman to harm a peasant and something quite different for a peasant to harm a nobleman or a priest. The focus on the criminal identity of the individual was less sharp and was still locked into other contexts and characteristics of the individual. It was of course much harder to think abstractly in a society where nearly all social relations were interpersonal ones of status and submission. By contrast, in modern society where a large proportion of relations are ones involving passing strangers, or individuals whose relationship centres around a single dimension of work or economic exchange, it is far easier to think of people abstractly because we know so little about them anyway. So when they kill, it is the killing that defines them. If a mediaeval King or the Lord of the Manor killed then it was hard for all those under his personal rule to forget that even though he has killed, he is still the King or the Lord of the Manor. This situation lasted right up until the beginning of the modern period and as the historian G.R. Elton remarks:
This focus on the particular character of the participants in a crime rather than the general notion of what crime had been committed was also reflected in the trial process. As late as the 1600s, well into the early modern period courts
In the mediaeval period offences against the King or his agents were of particular seriousness and together with other 'heinous' crimes such as murder, would be seen as an affront to the King's rule and treated as if a form of rebellion. As Michel Foucault has written in his brilliant book Discipline and Punish "The right to punish… is an aspect of the sovereign's right to make war on his enemies… the public execution… brought to a solemn end a war, the outcome of which was decided in advance, between the criminal and the sovereign." (Foucault 1977: 48-50) Trials in the Royal courts, followed by public executions carried out under the authority of the King, would be not simply the capital punishment of the offender but a spectacular demonstration of the power of the King to triumph over all who dared violate his will. This form of justice, delivered in a spectacular form by the King and his courts, was very much 'victors justice.' The public execution was a brutal demonstration to his subjects of the power and authority of the monarch. It was not justice in the modern sense of the term.
But such public theatres of Royal vengeance were the exception rather than the rule. A host of everyday conflicts and disputes were settled informally often by a money payment. For most people "taking a criminal grievance to court was often the ultimate step in a quarrel which had either become too important or too difficult for the parties to settle in any other way." (Lenman and Parker 1980: 192) Such disputes were generally between people who knew each other and thus, even in the absence of anything resembling a modern police force, the participants to a conflict could be easily brought together.
Disputes and offences, then, were looked at in terms of the particular context in which they took place and the particular character and status of the participants rather than as crimes in general had other consequences. The other side of the coin was that adherence to the law was always a particular issue determined by the situation at hand rather than some general notion that the law should not be violated. There existed what Michel Foucault refers to as the tolerated or 'popular illegalities' in which "each of the different social strata had its margin of tolerated illegality: the non application of the rule, the non-observance of the innumerable edicts or ordinances were a condition of the political functioning of society… illegality was so deeply rooted and so necessary to the life of each social stratum, that it had in a sense its own coherence and economy." (Foucault 1977 page 82) These took a number of forms - for the upper strata: "massive general non-observance", non implementation of laws, recognition of impossibility by the authorities, for the masses: a "space of tolerance", gained by force or obstinacy:
Even down as late as the eighteenth century Edward Thompson in his book 'The making of the English working class' wrote that:
Sovereignty rather than government
Foucault drew an important distinction between sovereignty and government. Sovereignty is the exercise of juridical power, the commands of the law or the edicts of the King. As such they are simply demands for obedience. Government, by contrast, may use the law to back up its commands in the same way but the commands are aimed not simply at obedience to the monarch as sovereign but at the efficient management of populations and societies. How to increase the rate of economic growth, how to ensure the health and eduction of the population to a certain level; these are the tasks of a modern government. These tasks are achieved through the use of laws and commands (e.g. Requiring by law that every child attend school up to a certain age) but the aim is not obedience to the state for its own sake but the education of the population.) To take another modern example: making smoking in public places a criminal offence would be directed to maintaining the health of the population. Saying: 'do not smoke because I desire you not to and smoking is therefore an affront to my authority' is the exercise of sovereignty pure and simple. This gives something of the flavour of the King's authority in medieval society. Foucault, elsewhere, refers to this as a "self-referring circularity of sovereignty" (Foucault 1991: 95) The King ruled in a patriarchal manner as head of the family, defending and maintaining his status.
This is important in understanding the medieval period. The mediaeval judicial system was undoubtedly inefficient from a modern standpoint. Harsh and frequently barbaric penalties on the one hand and a very low chance of detection on the other. This view is simplistic if it sees the pre-modern and modern systems as engaged in the same sort of enterprise: namely the effective regulation of crime as part of the government of society. The local community in mediaeval society was left to manage its own affairs not simply because the central state was inefficient, but because it was not seen as the role of the state to regulate the community, as long as the latter posed no threat to the sovereignty of the King, and paid its tithes and tributes to church, king and local landlord, matters largely governed by local custom and tradition. Thus the question of illegality was tied in with this. Violation of the law was less of a threat to social order because the King would only enforce his laws periodically. His power was 'irregular and discontinuous' as Foucault puts it. It's a bit like kids saying 'we only need to show good table manners when granddad comes to dinner.' This is about showing respect to grandfather. It is not that dinner cannot be effectively eaten by stuffing your face. The non observance of the Kings laws was therefore not seen as a threat to social stability and the ordered functioning of society as it would be today. Foucault summarises the relation between illegality and sovereignty in this way:
SIXTEENTH AND SEVENTEENTH CENTURIES 1500-1700
All this begins to change as we move towards the modern period. The most important forces for change were twofold
But apart from a conflict between the old ideas of the sovereignty of the King and the interests of merchants and manufacturers both were interested in the development of a more efficient system of law and order. The King (and later Parliament) had an interest in efficient tax collection, and the merchants wanted security for trade and the shipment of valuable cargoes of goods (particularly wool and grain) around the country. So whereas for the feudal aristocratic and his serfs, law and order and the control of disputes was by and large a local matter, with the growth of trade the demand for a consistent system of law, enforced throughout the land, without fear or favour to any particular persons - what we now call the 'rule of law' became a key issue. If I am a Merchant, sending my goods for sale all over the country, I want to know that anyone who steals my merchandise will be dealt with in the same way-whoever they are, and wherever the theft takes place. Increasingly of course agricultural land became less simply a source of identity, status and power and more a source of money and investment.
The pressure was towards the modern concept of 'crime' as the same wherever it is committed and whoever commits it and towards an undermining of the older notions of the majority of disputes being settled locally, either by the villagers themselves or by the Landowner or his nominee and being as much governed by local custom and opinion and the status of the parties to the dispute or conflict.
As we move into the eighteenth century we shall see that social and economic change becomes more rapid and concerns not simply the growth of trade, but a revolution in agriculture and the beginning of the shift to the towns and to industrial employment. We shall also see that conflicts over law and criminality becomes central issues in these changes.
Elton, G. (1977) 'Introduction' in Cockburn, J. ed. Crime in
England 1550-1800, London: Methuen.