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The late
seventeenth and eighteenth
centuries were a period of transition - between
the old traditional rural society stretching back to the Middle Ages
and
the modern urban society of industrial capitalism. Changes - the
growth of trade and manufacture, commercial farming, the expanding
power
of the trading and manufacturing classes - had of course been underway
during previous centuries but it is during the this period that the
changes, particularly in relation to crime and criminal justice, become
noticeable. The transitions which we can observe during this period are
important for us today. If we can
understand the social changes - urbanisation, the market economy, the
formation of the modern working class, the changing position of women
as
part of that process - then we can better understand how changes in the
present period may be affecting crime and the criminal justice system.
We can see two sets of related changes at
work: firstly changes in the
nature and definitions of crime and secondly, changes in the ways in
which
crime is controlled. In this lecture we shall deal with the first of these: changes in
criminality. We need also to distinguish between long run and short run
change. When rapid change is taking place there is often an
intensification of social conflicts and problems before a new period of
stability sets in. Thus, as we shall see, the nineteenth century was a
period of falling crime as urban capitalist society become more stable
and
the modern criminal justice system was put in place. However the
immediate
effects of the changes which formed the transition to modern society, during the period we are going to discuss now,
was
rising crime and an intensification of conflicts and social problems.
Some of the long run changes in the
nature of crime have been summed up
by Michel Foucault as a shift from mass to marginal criminality
"A general movement shifted criminality
from a 'mass criminality'
to a 'marginal criminality' partly the preserve of professionals... In
fact, the shift …forms part of a whole complex mechanism, embracing the
development of production, the increase of wealth, a higher juridical
and
moral value placed on property relations, stricter methods of
surveillance, a tighter partitioning of the population, more efficient
techniques of locating and obtaining information: the shift in illegal
practices is correlative with an extension and a refinement of punitive
practices." (pp 75-7)
That is to say, criminality was becoming
the preserve of a particular
group of people who could be identified as criminals, rather than
simply
something anyone might do. This, he is saying, was associated with the
development of modern society-the importance of private property,
better
methods of surveillance of the population and obtaining information
about
crime and at the same time the development of more sophisticated penal
practices.
But that is a long run change. During the
eighteenth century crime
rates were rising under the impact of the decay of traditional rural
forms
of economy and society. A great social change was taking place in
England: the transition to a
capitalist market society. The countryside was the place where these
changes were taking place: industrial manufacturing and urbanisation
had
yet to develop. This transition had two aspects. Firstly it involved
considerable social dislocation and secondly it led to social struggle
over rights as the traditional relations between the landowners and the
masses moved towards the modern social relations of employer and
employee.
Crime became tied up with the social conflicts and antagonisms
associated
with these changes.
It is of course difficult to get an
accurate estimate of the amount of
crime in England at this time due to the absence of centralised records
and the fact that many lesser crimes were dealt with summarily and not
recorded. During the 1720s and 30s there was, according to commentators
like the novelist and London magistrate Henry Fielding and merchant and
magistrate Patrick Colquhouon, a rising tide of crime. And this view
was
generally shared. As regards the causes of rising crime it is important
to
distinguish between two issues. Firstly, rising crime as a result
of
the social and economic dislocations produced by change and, secondly,
the
extent to which some forms of crime were a form of protest or
resistance
on the part of the poor to the changes taking place in their
livelihoods.
Crime as a reflection of social
dislocation
In 1812 the magazine Quarterly Review,
commenting on the
previous century, observed that
"Commerce itself is the mother of the
crime of theft in all its
varieties; not more from the habits it bestows than the opportunity it
affords to that offence. It pours in wealth in a shape most convenient
for
plunder"
The most important form of wealth of the
traditional rural English
society had of course been land, a fixed form of property. But with the
growth of trade and manufacture and commercial farming, money
circulated
rapidly and goods were increasingly on the move from countryside to
towns,
to ports for export, along the newly constructed roads and canals.
Hardly
surprising, then that the eighteenth century was the age of the
Highwayman.
Goods, money and people in transit between towns were relatively
defenceless against armed robbers. The slow speed of transport, the
absence of a regular police force underlined the inability of the state
to
exercise effective control over the national terrain. There were large
areas of the rural periphery beyond the control of the state, or with
only
periodic visits by state officials such as revenue officers and
soldiery
to coastal smuggling communities. The expansion of trade both between
towns and between continents exposed the weakness of the state in the
face
of the professional Highwayman and Pirate who existed, much as in the
Middle Ages, based on the sanctuary of unguarded and uncharted
territory.
At the same time as towns rapidly expanded a similar weakness of the
state
was highlighted by the rookeries, areas, usually a maze of narrow
streets and alleyways navigable only by their inhabitants and safe from
all except the episodic incursion of the authorities. In these areas
underworlds, networks and a thriving criminal economy had been
expanding,
in London at least, since the middle of the sixteenth century.
Apart from this expansion of criminal
opportunity, the social
effects of the transition to capitalism tended towards increasing crime
by
increasing poverty and insecurity. The landed gentry saw their property
increasingly as a source of
profitable agriculture. The labourers who had worked their estates for
centuries increasingly came to be seen as wage labour: to be hired and
fired as required, rather than families who had lived and worked the
land
for centuries. Workers who were not profitable were turned off the
land.
There was a great deal of poverty and at the same time bread prices
were
rising as a free market in grain was established.
Historian John Beattie writing about the
eighteenth century (especially
after 1750) says:
"Crimes against property in the
eighteenth century arose primarily from
problems of employment, wages and prices… they increased when men found
themselves squeezed by rising prices or lower wages or lack of work."
(Beattie 1974)
His research on the court records in the
counties of Surrey and Sussex
during the 1760s showed how crime rates closely followed the movements
of
prices
Crime as resistance to the development
of capitalism
But there is an important additional
dimension to crime during the
eighteenth century. In talking about traditional society we noted what
Michel Foucault called the 'popular illegalities'. We noted the
lack
of a clear conception of criminal law violation and strict boundaries
between legal and illegal. The nature of monarchical sovereignty was
such
that it did not require absolute observance of the law. But with the
rising importance of trade and commerce, property was money. Merchants
and
manufacturers saw their property as investments and sources of profit,
not
simply of social status. An absolute sanctity of property, the right of
the property owner to complete control over his property and the
profits
it generated needed to be defended. The extension and consolidation of
bourgeois property involved not only the increasing refusal to tolerate
traditional illegalities but the criminalisation of activities many of
which had been customary practices since time immemorial. These
included
such activities as the gathering of wood or hunting of game on common
land, together with a whole host of traditional 'perks' like the
entitlement of agricultural workers to a portion of the remains of the
harvest, of coal miners to pick the waste coal from the pit heaps, and
of
dockers to a portion of the cargo. The latter practice in particular
outraged
Patrick Colquhoun, the wealthy eighteenth century London merchant and
magistrate and led him to found his own private police force to stop
pilferage in his dock warehouses at Wapping on the Thames.
The criminalisation of custom produced 'crime' functioning
as
opposition by working people to the advance of capitalist social
relations. In eighteenth century England the state, with its expanding
'Bloody Code' of capital offences, followed in the footsteps of
capitalist
property relations.
The mass of working people meanwhile
attempted to defend their
traditional ways of doing things - their traditional rights and
customs,
acquired over the centuries, to the regulation of
prices of flour and bread, to hunt game on 'common land', to take a
portion of the harvest, or of the cargos of ships unloaded. All these
were
being taken away. From the standpoint of the commercial farmers,
manufacturers and merchants these customary rights came to be
seen as ambiguities, obstacles to the absolute ownership of property
and
the right of the owner to use his property in the pursuit of profit as
he
saw fit. All other claims to use the property by the masses had to be
seen
as theft. In resisting these changes the masses thus found themselves
increasingly being regarded as criminals. Certain types of crime thus
became forms of resistance, of the defence of traditional rights and
customs.
During the 1970s radical British
historians such as Edward Thompson and Douglas Hay wrote much on the
relationship between crime and social protest. They generally used the
term 'social crime' to refer to criminality functioning as a form of
resistence or protest. The term social crime was first coined by the
historial Eric Hobsbawn in his writings on `primitive rebels' and
`social bandits'. (Hobsbawm 1959, 1969, 1972). There are a number of
elements associated with the concept of social crime
Firstly there is the violation of law as a more or less explicit form
of protest. In Hobsbawm's usage, social crime describes
a conscious,
almost a political, challenge to the prevailing social and political
order and its values... (which)... occurs when there is a conflict of
laws, e.g. between an official and an unofficial system, or when acts
of law-breaking have a distinct element of social protest in them, or
when they are closely linked with the development of social and
political unrest. (Hobsbawm 1972: 5)
This is more than simply a statement of
the obvious fact that many criminal offenders might be driven by a rage
to `hit back at the system'. The reference is rather to organised
social resistance with the criminal acting in some sense as a
representative or articulator of social grievances. Thus in Hobsbawm's
studies of social banditry the focus is on
peasant
outlaws whom the lord and state regard as criminals, but who remain
within peasant society and are considered by their people as heroes, as
champions, avengers, fighters for justice, perhaps even leaders of
liberation and in any case as men to be admired, helped and supported.
(Hobsbawm 1969: 17)
A second important element of social
crime is the existence of broad community support for the activities of
the 'criminal'. This may range from regarding the criminal as a
romantic hero - as with some of the Highwaymen mentioned earlier or
simply turning a 'blind eye' to certain activities -- like not asking
too closely where the cheap goods being offered to you actually came
from. In the middle were forms of activity in which a large number of
people participated although they might not have had any clear notion
that they were engaging in acts of resistence to change.
Let us
take some examples.
bread riots
Bread riots, occurred throughout the
eighteenth century in response to
deregulation and rising prices. They are recorded in 1709, 1740,
1756-7,
1773, 1782 and in particular 1795 and 1801. These are just the ones of
which historical records remain. These events were an important
indication
of the way that changes associated with the development of the market
economy impacted on the poor. These riots were studied in a very famous
article by Edward Thompson, written in 1967 called 'The Moral
Economy of the English Crowd in the Eighteenth Century',
What was happening was fairly simple.
Traditionally, since time
immemorial, farmers had harvested grain and brought it to the local
town
market, where it had been sold at a price regulated by tradition.
Bakers
bought the grain and baked bread and sold it, again at a traditional
price
regulated by custom and law going way back into the Middle Ages. Bread
was
a particularly important part of the diet of working people at that
time.
It was not just one item among many as it is today. No bread meant no
food.
But the development of the market economy
and the rise of commercial
farming for a profit meant that landowners were starting to behave
differently. They now grew grain to make money not just to serve the
needs
of the locality. They started to do things like:
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Hoard grain at harvest time when the
price would be low, and sell it
later when there was more of a shortage and prices were rising.
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If they discovered that prices were
higher in another region they
might export their grain there rather than sell it to the local bakers
at
the traditional price.
Thompson quotes a petition of labourers
from Leeds in 1795 to the local
magistrates. They complained of
"corn factors and the millers and a set
of people which we call
hucksters and mealmen who have got the corn into their hands that they
may
hold it up and sell it at their own price or they will not sell it."
Both these would raise the price of
bread, to the profit of farmers but
to the detriment of working people. The riots, so called, were not
orgies
of lawlessness, argues Thompson, but deliberate action by the masses to
prevent this sort of behaviour and to try and retain the traditional
methods. They were, argues Thompson a form of 'politics' by poor people
who had absolutely no other way of making their voices heard. There was
no
representation in parliament, and there were no trade unions or any
form
of representation of the interests of the poor. Meanwhile the
representatives of the new rising class of commercial farmers and,
later,
industrialists, were singing the praises of the market. Remember this
is
the period when Adam Smith wrote the 'Wealth of Nations' - which to
this
very day is used by defenders of free market capitalism as their
'bible'.
He demanded the "unlimited, unrestrained freedom of the corn
trade." That is, of the free market.
One point that Thompson makes is that
Magistrates and the local
authorities who had to deal with the disturbances were often looking
backwards to the old traditions rather than forwards to the new world
of
capitalism. They often referred back to old Mediaeval laws by enforcing
the
regulation of prices and thereby prohibited the very things that
commercial capitalism now wanted to do -
hoarding until prices rose (forestalling) The alternative response to
the
rioters was subsidy. The Speenhamland system of Poor Relief inaugurated
in 1795
was a welfare system linked to the price of bread.
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Some
interesting websites on bread
riots:
the riots at Shepton
Mallet in Dorset
Bread riots in Staffordshire
(with a nice map of outbreaks in 1766)
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poaching
The second
example, was poaching - the illegal hunting of game
(rabbits, pheasants, deer etc.) on private land. This involved trespass
and theft. Poaching was also much studied by Edward Thompson, (in his
own
book Whigs and Hunters and in a book he edited with Douglas Hay and
other
historians callled Albion's Fatal Tree)
The poacher in
many areas was something of a popular hero. The Welsh
historian, David Jones, wrote that the poacher was "such an ordinary
figure, an accepted and normal part of rural life.". Down to the
early 1840's one in four criminal convictions were for poaching
offences.
Jones goes on: "In the second quarter of the (nineteenth) century
poaching was widely regarded as one of the fastest growing crimes in
Britain, and, unlike arson, highway robbery, cattle-, horse- and
sheep-stealing, it continued to be a prominent and permanent part of
the
rural scene even in the 1880's and 1890's.
Poachers were
"overwhelmingly working people" though the authorities tended to
target casual and migrant agricultural workers. Here was a classic case
of the Magistrates and the landowners being
determined to stamp out a crime that ordinary people for the most part
just did not think was a crime at all.
Thus Douglas Hay's study of poaching (in
the book
Albion's Fatal
Tree) showed
how local communities
"…united solidly in defence of
poaching. The keepers met with a
wall of silence when they tried to make inquiries, but found that word
spread like lighthening when they obtained a search warrant, and that
the
suspects had escaped with 'the apparatus' just before they arrived.
Witnesses lost their memories… Poachers not only gave alibis for one
another; they also took measures against informers" (1975: 198)
However such popular support can range
from positive enthusiasm for
bandit as popular hero-as in the Robin Hood legend or the poacher as
popular hero-to simply turning a blind eye to activities which the
state
authorities regard as crime but which peasant or working class
communities
do not perceive as particularly harmful. Whereas any notion of crime as
popular protest necessarily involves communal support for the criminal,
it
is not clear that the latter necessarily implies the former.
Poaching was seen by the majority of the
poor simply as a defence of
tradition. Since time immemorial local people had, by tradition, hunted
rabbits and other game on 'Common' land. (this old notion of 'Common'
land
as belonging to everyone still exists. So we still have Clapham Common,
Wandsworth Common etc where anyone can go.) But gradually, landowners
were
claiming these areas as private property and putting fences
(enclosures)
around them to keep the local people off. The aim was now to use the
land
for profitable farming and the last thing wanted was the local
labourers
hunting the rabbits. Crime here expressed a class of class interests.
Of
course the situation was not quite as simple as this. There were for
example, gangs of professional poachers who hunted game and then sold
it
on the black market to Innkeepers. By no means all poaching was poor
people defending their traditional way of life.
pilferage
Crime as resistance was even clearer in
the docks. Men who unloaded
ships had, again, by tradition, taken or 'pilfered' a small portion of
the
cargo. If a ship full of tea was being unloaded then the dock workers
would take a few packets each. This had been part of the 'popular
illegalities' since time immemorial but by the eighteenth century
merchants, who were running profitable trading businesses, wanted this
stamped out and a new respect for 'absolute private property' drummed
into
the masses. They had to be taught that taking what was not theirs was a
criminal offence. Theft of cargo interfered with profits.
Thus Patrick Colquhoun, a wealthy London
merchant, magistrate and
friend of the philosopher Jeremy Bentham, complained that dock workers
"consider it as a kind of right which attaches to their situation to
plunder whatever opportunity offers" (quoted in Emsley page 113).
Peter Linebaugh, a historian who worked with Edward Thompson, wrote a
book
called The London Hanged in which he described, among other things, the
struggle of dock workers in London to retain their old traditions. He
quotes Colquhoun's plan for a professionally paid police force - a
novel
idea in those days to stop pilferage. Colquhoun's Thames Police founded
in
1800 were the first paid police force in London and predated the
foundation of the Metropolitan Police by 29 years. Other merchants in
Liverpool and Bristol followed rapidly with their own 'docks police.'
By
modern standards these police forces were more like Securicor or Group
Four. They were concerned to search workers as they left the docks, and
Colquhoun even put his police in charge of paying the wages. He
certainly
saw their main job as keeping the workers in order.
Linebaugh quotes Colquhoun in his plan
for the new Thames Police, as
seeing
"the working class as an epidemic... a
military enemy whose
'various detachments and subdivisions... [form] the general army of
Delinquents'... The London working class has spun a 'system', a
'monstrous System of Depredation', a 'General System of Pillage'. It is
'disciplined in acts of Criminal Warfare'... The working class is also
uncivilised, possessing 'unruly passions', 'rapacious desires', 'evil
propensities', 'noxious qualities', 'vicious and bad habits', and its
moral turpitude needs the 'human improvement' by police" (1991 p 428)
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read
my review of the second edition of Peter Linebaugh's The London
Hanged.
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machine smashing
Towards the
end of the eighteenth century and in the early decades of the
nineteenth direct violent criminal resistence to the development of
manufacture gathered pace. The new 'manufactories' (factories)
particularly in the Midlands and the North of England employed a
growing army of urbanised workers (men, women and children) at
starvation wages and crowded them into the unsanitory condititions of
the rapidly expanding industrial town. We shall consider the impact of
these developments in a later lecture. But, especially in the textile
industry, these new factories were, by using the latest steam
technology, undermining the living standards of the traditional rural
hand-loom weavers who simply could not compete with factory made
textiles in terms of price.
Riots against
the introduction of the machine were frequent during the eighteenth
century. The motive was not simply the economic impoverishment of those
still producing by traditional methods but the disruption to community
and social life involved in the transition from work organised around
the family and carried on in the place where the family lived.
Traditional textile production would be organised much the same way as
farming with different members of the family having a different role in
the production process. Employment in the new factories, meant, in
addition to terrible labour conditions, the breakup of the family. The
new 'Masters' (the factory owners) had little regard for the custom of
all family members working together and saw no obligation to even
employ all members of the family. The most articulate and militant of
the machine smashers were the 'luddites' at the beginning of the
nineteenth century
"Although
machine-breaking had been a considerable, customary form of industrial
relations in Britain for a century, it assumed a darker and more tragic
place in the folklore of industrialization with the Luddites. Named
after a supposed Leicester stockinger's apprentice named Ned Ludham who
responded to his master's reprimand by taking a hammer to a stocking
frame, the followers of "Ned Ludd," targeted this machine for
destruction. The movement began in February 1811 in the Midlands in the
triangle formed by Nottingham, Leicester, and Derby in the lace and
hosiery trades. Protected by exceptional public support within their
communities, Luddite bands conducted at least 100 separate attacks that
destroyed about 1,000 frames (out of 25,000!) valued at
£6,000–10,000. As Luddism in the Midlands died down in February
1812, inspired woolen workers in Yorkshire acted in January. A third
outbreak took place in April among the cotton weavers of Lancashire.
Factories were attacked in both places by armed crowds, and thousands
participated in these activities, including many whose livelihoods were
not threatened directly by mechanization. Despite the heterogeneous and
cross-sectoral composition of the "crowds" involved, the Luddites
generally distinguished between those machines that they regarded as
innovations or that threatened employment, and left other machines
alone. The specific causes of these three outbreaks varied, not only
according to region, but also by sector; collectively, these initial
episodes of Luddism caused perhaps £100,000 of damage. Further
waves of machine-breaking in which a few hundred additional stocking
frames were destroyed took place in the winter of 1812–13, the summer
and fall of 1814, and the summer and fall of 1816 that sputtered into
early 1817" (Jeff Horn -- see reference below)
The continuity of social crime
The forms of
social crime we have considered were the more overt, militant type,
which can be construed as a type of protest or defence of the status
quo against change. Certainly machine-smashing fits such a description.
Alongside these more overt forms of crime as protest were similar sorts
of activity, part crime,
part simply traditional activities of the poor. Some of it was pretty
harmless like coal miners' families
picking over waste coal from the slag-heaps and taking it home. But
during
the eighteenth century other activities like smuggling often involved
whole
communities, in the coastal areas, who on occasion were prepared to
fight
armed battles with the authorities to defend what was a lucrative
traditional form of income.
Social crime of
the pilferage type continues well into the modern period.
Another historian, John Benson, talking about working class crime in
the
nineteenth and early twentieth centuries says:
"There seems
little doubt that certain forms of popular crime
declined in importance between 1850 and 1939. Poaching became less
common
towards the end of the nineteenth century while prostitution diminished
dramatically in the years following the First World War. On the other
hand
there seems little doubt that other, probably more common forms of
popular
crime persisted virtually unabated, with scavenging, pilfering and
similar
activities continuing to provide work and income for a large - though
unknown number of working class families." (Benson 1989: 28-9)
As late as the 1950s the sociologist,
John Mays, was amazed at the
degree of pilferage taking place in the Liverpool docks and the effect
it
was having in teaching docker's children 'bad ways'
"The amount of theft from the Liverpool
docks is considerable,
£15,000 work of goods being stolen in the year 1951 and 467
persons
prosecuted. While the offenders in this respect are not all dock
labourers
very many are, and the effect on children who see their fathers and
elder
brothers bringing home goods stolen at work must be considerable"
(Mays 1954: 117-118)
The general
point is this. Gradually, as we shall see, there develops
something of a consensus in society about the definition of crime and
what
is not and the criminal comes to stand out as someone clearly marked by
his crime. The old blurred boundaries of the 'popular illegalities'
become
firmer. But of course social crime never entirely disappears. In poor
communities widely tolerated forms of pilferage and theft remain
important supplements to, or even for, low levels of wages or social
security benefits. Indeed, with the growth today of the 'informal
economy' of smuggled, counterfeit or stolen goods (see the article by
Trevor Bark listed below) there are plenty of examples of forms of
crime,
particularly theft or shoplifting for example which are tolerated by
the
poor and yet regarded as theft like any other by people who have secure
incomes and therefore are not tempted into such activities.
references
Beattie, John (1986) Crime and the Courts
in England 1600-1800. Princeton University Press.
Benson, John (1989) The Working Class in Britain 1850-1939.
London: Longmans.
Jones, David (1982) Crime, Protest, Community and Police in Nineteenth
Century
Britain. London: Routledge.
Hay, D., Thompson, E., Linebaugh, P. eds. (1975) Albion's Fatal Tree:
Crime and Society in Eighteenth Century
England. London: Allen Lane.
Hobsbawm, Eric (1959) Primitive Rebels: Studies in Archaic Forms of
Social
Movement during the Nineteenth and Twentieth Centuries. Manchester:
Manchester University Press.
Hobsbawm, Eric (1969) Bandits. Harmonsworth: Penguin books.
Hobsbawm, Eric (1972) 'Social Criminality: distinctions between
socio-political
and other forms of crime', Bulletin of the Society for the Study of
Labour
History (25):5-6.
Mays, John (1954) Growing Up in the City. Liverpool: Liverpool University Press
Reay, Barry. (1998) Popular Cultures in England, 1550-1750. London: Longmans
Thompson, Edward (1967) 'The Moral
Economy of the English Crowd in the Eighteenth Century', Past and
Present
50. pp 76-136.
Thompson, Edward (1977) Whigs and Hunters: The Origins of the Black Act. Harmondsworth: Penguin books
Wood, Andy. (2002) Riot, Rebellion and Popular Politics in Early Modern England. Basingstoke: Palgrave
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