Law, Ideology and the Gallows in 18th and 19th century England
© John Lea 2004
In the previous lecture we looked at eighteenth century England as a time of transition, illustrated by rising crime
The eighteenth century criminal justice system
This also during the eighteenth century is involved in a complicated transition between old and new, between the old localised and personalised justice of the Middle Ages and the modern system of the relatively impartial application of the law by trained judges and magistrates assisted by a professional police force.
By modern standards the eighteenth century system seems arbitrary, brutal and inefficient. It was all of these but it is important to understand that it reflected a way of life which was in decline but in terms of which it made a great deal of sense.
justice: decentralised and personal
The criminal justice system was still based very much on the old system of personal relations. As we have already seen, in the Middle Ages crime not against property or persons in the abstract but against my property or the property of the Duke of Northumberland or wherever. As we have already noted, criminal laws reflected this way of looking at things. Rather than a law against allowing one's horse to foul the footway in public places there would be a law against horses fouling the footway on Westminster Bridge and then another law about doing the same thing on Fulham Bridge and so on. People did not think in terms of abstractions but in terms of particular relations between particular people and activities in particular places. Similarly, most crimes were dealt with in a very decentralised local way. Local landowners would hold their own courts. Only serious offences would go to the King's courts. Most everyday offences among poor people would be settled out of court anyway.
By the eighteenth century things had become a bit more like the modern system. Wealthy landowners, rather than holding their own courts had for some centuries delegated their power to local officials: parish constables and Justices of the Peace. But in many respects the system continued the older traditions. Justices of the Peace felt loyalty to ‘their betters’(i.e. the local landowner) rather than directly to the ‘Crown’ or yet alone ‘the people’. The local landowning aristocracy resisted any encroachments from the centre.
All talk of a national police force or public prosecutors, such as had been created in France in the 17th century was regarded as Continental tyranny. In France Louis XIV had established a Royal Police in 1667 under with explicit aim of strengthening royal authority in all fields of life. Public Prosecutors were the Kings agents. But the English landowning aristocracy valued the fact that their predecessors had checked the growth of centralised Royal Power long ago during the Middle Ages. The 'great charter' or Magna Carta had concluded conflict between the King and the great Barons in the 12th century. The organisation of justice reflected therefore the local power of the landowner as much as that of the King. While Scotland (a separate Kingdom until 1708) was a little more like the Continent, the English legal system was overwhelmingly decentralised and local. For the people, law and crime contro was much more rooted in everyday life and community, than in systems where police and judges represented only distant Royal power.
The victim as prosecutor
England was quite unique in having the victim as the initiator of criminal prosecutions. It only began to decline well into the nineteenth century. It was up to victim, rather than state officials, to initiate investigation and prosecution.
During the eighteenth century:
This was, by the eighteenth century becoming increasingly expensive and thus the tradition whereby the poor settled most of their cases out of court continued. On occasion, if the offender was fined by a court but was too poor to pay the court might turn around and charge the prosecutor! Thus often a threat of prosecution rather than actual prosecution would surfice to extract a compensatory payment. If the crime was not a felony but only involved personal property then restitituion between the parties, even with magistrate supervising, would be cheaper and more appropriate.
Focus on trial rather than on detection
In this traditional system of localised, highly personalised justice the main instrument was the court and the trial. Most offenders would be known to their victims and so criminal law could take a form much closer to that of civil dispute. Crime detection and policing methods were elementary and crude (see below) Courts waited, as it were, for matters to be brought before them. The role of Justice of the Peace was to decide whether there was a ‘case to answer’ The complaint would be brought by the victim, or in serious casees by a representative of the Crown.
The emphasis was on the trial: this was the personal confrontation between disputants, victim-prosecutor and defendant. It was still seen as very much a personal confrontation between someone and their accuser rather than the state impartially enforcing the law. Crime was a particular violation by one person of another, rather than a violation of 'the criminal law'. Remember that despite the crime problem in London and the towns, noted above, the vast majority of the population still lived in the countryside where relations were still mainly between people who knew each other and were acutely aware of social status and 'standing'. Once the criminal trial was underway it retained the character of a personal and direct confrontation between prosecutor and defendant. The general character of court proceedings is described by James Beattie
Personal intervention by ruling elite
In a similar way a local person of influence such as the local landowner might put pressure on the magistrates for a pardon, or even to discontinue proceeds, in a particular case. Nowadays we would see this a outrageous interference with the due process of law. That is not to say that such things don’t happen. The courts still tend to treat upper class fraudsters with more lenience than working class shoplifters. But that aside, we no longer have a situation where the local squire or inflential man of property might have a word in the ear of the magistrate to secure a pardon.
But this was the last residue of the system going back to the Middle Ages in which it had been the local landowner himself, the squire, or Duke or whatever, who dispensed justice. As we noted above, the Justice of the Peace or Magistrate originated as his nominee. Douglas Hay, in a brilliant article, pointed out that this last breath of the older personalised justice still fulfilled important ideological functions of legitimising social structure in the eyes of the rural masses.
Thus the local squire or landowner putting in a good word for one of his labourers helped to consolidate his personal standing and power in the community. This system of personal power was, as Hay makes clear, on the way out in favour of a more impersonal rule of law, which had the virtual of treating everyone equally – in theory. Thinkers like the English philosopher and reformer Jeremy Bentham and the Italian jurist Cesare Beccaria were writing brillian defences of the modern notion of the rule of law and calling for reform of the system. The new system, as we shall see in future lectures, was more adapted to urban capitalist society in which legal relations, relations of offender and victim, are between strangers. But the important point here is not to think of the old system as corrupt, but as the expression of a particular type of class relations between landowners and their labourers, an essentially rural and status conscious society which has now passed away.
The masses and the law
The masses, therefore, had quite a complex relationship with the law. On the one hand, in the rural areas, many still deferred to the judgement of their 'betters' in the way suggested by Hay above. On the other hand the period was one of great conflict as we have already seen (see the lecture on crime and protest). Thus in many respects the masses despised the law, not just because of the expense of victim-initiated prosecutions but because of the way the law was being used to usurp their traditional rights. As the historian Edward Thompson put it.
But at the same time the legal system cannot function in the eyes of the poor as a form of legitimation for the unequal structure of society unless it delivers some benefits to them. As Thompson noted, the rule of law, the impartial application of the law between different social classes, a notion gaining strength during the period, and displacing the old rural deference. These new ideas served to link the masses to the system. Thompson described the rule of law as "an unqualified human good ... (which) ... while it did mediate existent class relations to the advantage of the rulers ... mediated these class relations through legal forms which imposed, again and again, inhibitions upon the actions of the rulers." (Thompson 1977: 264-5)
Other historians have echoed these themes. David Philips, though somewhat critical of Thompson, makes similar points
It is estimated that at Essex Quarter Sessions during the period 1760-1800 a sixth of the prosecutors were labourers.
inefficiency in the face of change
But remember, the eighteenth century, especially the second half, was a period of increasingly rapid change. The emergence of market relations, the growth of towns, trade and wage labour. The early stages of the Industrial Revolution were underway. We have already seen that crime rates were generally rising and that a substantial part of this crime, social crime, was a form of resistance by the masses to these changes. The result of growing social crime and conflict during was that the system in many country areas was breaking down. Poaching cases would attract crowds outside the courthouse who would attack the gamekeepers who had prosecuted or given witness against the poachers. Often troops had to be called in to restore order. The frequency of riots over bread prices and other issues highlighted the general inefficiency of the systems of control at the disposal of the ruling class, in particular the dependency on the military as the only force capable of restoring public order.
Meanwhile the new middle classes in the towns, particularly the merchants, manufacturers, lawyers and professional classes saw rising crime as a symptom of the need for new forms of control of the lower orders. There had been public panics about crime and street robbery in London and other towns at regular intervals during the eighteenth century. Phillip Rawlings quotes a London newspaper in 1749 to the effect that:
The magistrate and novelist, Henry Fielding, remarked, around the same time, that a gentleman had to venture abroad at midday as if dressed for war. There were frequent moral panics among the rich about marauding gangs of housebreakers and robbers. Indeed almost any gathering of the poor was apt to be regarded as a dangerous gang. (Thompson 1977)
Urban England in the mid-eighteenth century was therefore a precarious place: towns were beginning to expand, the new social relations of wage labour were expanding, the size of the urban 'mob' was increasing, yet the mechanisms whereby the ruling classes could exercise control over this new population were crude and inefficient. The rulers had no sophisticated methods of political negotiation and control, there were no established relations between the new urban masses and the ruling elites to replace the old rural relations of personal deference which were in decline in the urban context. And remember that until the Great Reform Act of 1832 which extended the franchise to the middle classes the national government itself was not even in the hands of the urban middle classes but still the great rural landed aristocracy predominated.
The key issue was the transition from (to use Foucault's distinction) sovereignty to government: from a world in which crime was simply a wrong, a personal interaction between individuals or individuals and their superiors, to one in which crime was disruption, in which an offence against the criminal law was a disruption of the public peace and of the effective working of society. This meant a shift from the centrality of the court (as the place where disputants would confront one another) with no implications for the working of society, to the centrality of police and crime detection (as minimising disruption to the working of society)
Policing, such as it was, was rather inefficient in this new urban context. The old system was a mixture of Night Watchmen and 'Thief takers' who were private individuals employed by the wealthy and by magistrates. The system was certainly vulnerable to corruption: thief takers on occasion entered into alliances with thieves to share rewards for the return of stolen property (one is reminded of the old saying: 'set a thief to catch a thief') The bad reputation thief takers is in no small measure due to the exploits of the notorious Jonathan Wild who styled himself as 'Thief Taker General of Great Britain and Ireland'. He was exposed in 1725 as a leading reciever of stolen goods.
The wealthy themselves were frequently reluctant to be magistrates in urban areas. Many lower middle class magistrates, during the latter part of the century, accepted payment for executing warrants for the arrest of offenders. The quality of these 'trading justices' was regarded as low and the Conservative writer Edmund Burke denounced them as 'scum of the earth' It is as well to remember, however, that payment for services can be seen as a continuation the older tradition in which personal relations predominated over any notion of the impartial application of law.
There was much talk in the latter part of the century about the establishment of a New Police at the turn of the century Robert Peel who became Tory Prime Minister made several attempts in parliament to set up a professional full time police force. He was thwarted (until he finally suceeded in 1829) by country landowners, still powerful in parliament before 1832. Their resistance was quite rational. As we have already seen, their control over the local criminal justice system enhanced their rule and status. If it came to tracking offenders then they had plenty of gamekeepers and retainers at their disposal. The traditional fear of the French model of a powerful centralised national police was anathema to the English gentry and their notion of liberty. But the urban middle and lower middle classes had quite a different problem of security. As Philips comments
In the early years of the nineteenth century it was the aftermath of the Napoleonic wars and the growing fear of the urban masses becoming revolutionary which finally tipped the balance in Peel's favour. But at that point the issue was public order and rebellion rather than tracking down criminal offenders. Indeed during the anti-Catholic Gordon riots in 1780 a mob had taken over the centre of London for 5 successive days. This concentrated the minds of those who resisted the idea of a new police, again not so much from the perspective of effective thieftaking but the more general issue of public order. We shall discuss this in a future lecture.
preliminary moves towards the modern system
There were however, some important moves in the direction of the modern system of criminal justice and police in London. Among leading innovators were the Fielding brothers, John and Henry. Henry Fielding in his early criminology text (1751) Enquiry into the Late Increase of Robbers argued that responsibility for prosecution be taken out of the hands of the victim. Parliament subsequently took steps to remedy the increasing cost, and hence increasing difficulty, of criminal prosecutions. The basic approach was to recompense the prosecutor from state funds, rather like the awarding of costs in the civil courts. Reimbursement of Prosecution Acts were passed in 1770 and 1818 and were included in the Criminal Justice Act of 1826. These enactments did not challenge the system of private prosecution but simply tried to shore it up by making it easier for individuals to undertake prosecution. A good deal of innovation was entirely private. Wealthy people from quite early on in the century would form Associations for the Prosecution of Felons. These organisations took subscriptions much like an insurance company and could hire 'thieftakers' (which today would be called private detectives) and would pay the costs of prosecution. The growth of newspapers in latter eighteenth century aided the process - people would advertise and offer a reward for information. The government joined in during the 1728 crime panic in London and offered rewards and immunity from prosecution for informants. Informants were crucial in tracking offenders in the absence of a police force with a detective capacity.
But what the Fieldings understood was the necessity to move beyond a focus on prosecution and the penalties at the disposal of the courts, towards a concern with effective crime detection. As we shall see presently, the predominant response by the old regime to the rising crime of the eighteenth century was simply to prescribe horrendous penalties for crime. But the leading thinkers from the professions and urban middle classes understood clearly that the inflicting of inhumane penalties would not solve the crime problem when the rate of detection of crime was so low. This view was shared by the Fieldings, Patrick Colquhoun, Jeremy Bentham and other modernisers and reformers. It was no good increasing the penalties at the disposal of the courts if the chances of an offender being actually brought to court were very slim. The modernity this approach was the orientation to tackling crime as a social problem rather than simply a dispute between individuals or a violation of the King's authority, The need therefore was for an effective police detective system.'
John Fielding, as Magistrate at Bow Street in London's Covent Garden district had a chance to put some of these ideas into practice. He inaugurated his own force of thieftakers, known as 'Bow Street runners', who would apprehend offenders under the direction of Magistrates rather than in response to payment by the victim or at their own initiative. In 1772 he published a plan whereby Magistrates in different areas would exchange information about crime. In 1792 new professional paid (stipendiary) magistrates began to appear. Known as 'Police magistrates' they were part of a process whereby Police Offices established in various districts of London each with 3 magistrates who employed 6 paid court runners on the model of Fieldings system at Bow Street. These were, in effect, what on the Continent were known as judicial police, police officials working under the direction of the magistrate. This judicial police system continued until till 1839 and, like the older local parish Night Watchman system, operated for a time alongside Peels new Metropolitan Police founded in 1829. Indeed by 1822 there were in fact substantial horse and foot patrols operating from the Police Offices and the Parish Night Watch systems using paid professional constables. So Peel's new police did not come exactly out of the blue. It was the culmination of a number of innovations which preceded it.
Patrick Colquhoun, as we have already noted, followed the same lines by setting up his private Thames Marine Police in 1798 at Wapping. Colquhoun, remember, saw not just robbers but the working class as a whole as a virtual criminal conspiracy. His Thames Police Office at Wapping had three paid (stipendiary) magistrates and 100 constables. The system was paid for by subscription from merchants and warehouse owners at the docks with the main aim of controlling pilferage. Two years before setting up his police Colquhoun had published, in 1795, his Treatise on the Police of the Metropolis which was very influenced by the ideas of his mentor, the philosopher Jeremy Bentham who had published in 1791 his own Panopticon, or the Inspection House. Bentham's ideas were crucial in understanding the development of the modern prison and we shall return to them later. The other great thinker, the Italian, Cesare Beccaria had published his Dei Delitti e delle Pene (On Crime and Punishment) and between them these people were the advanced thinkers of very modern thoughts on crime and punishment. From the publication dates of these texts we can see that the last third of the eighteenth century was a period when a whole body of new progressive thinking was being articulated. This was the cutting-edge thinking of the day and some of the urban reforms of criminal justice were being influenced by it. But at the same time the ruling elite as a whole had, throughout the century been responding to rising crime in the traditional way: increasing the penalties for crime. The eighteenth century is known as the age of the Bloody Code. That is to say, a legal system based on hanging, a legal system covered in blood.
As theft was becoming more of an issue as we have described above, so the authorities did the only thing they knew and intensified the penalties. It would be some time before it was generally understood that the best way to deal with crime is to increase the certainty of detection rather than simply impose more severe penalties. The ruling elites hung on to the law and the gallows as the main mechanism of rule at their disposal. The expansion of crimes which carry capital punishment (the death penalty) is a major feature of the period. Not only murderers but thieves, rapists, forgers, were hung. In 1688 there were 50 offences which carried the death penalty. This is amazing by modern standards when even murder gets only imprisonment, but by 1800 there were 200 offences punishable by hanging. The eighteenth century was thus a period of expanding use of capital punishment. People were being hung for all manner of petty crimes. Some court records show that during the two years 1774-6 people were hung for arson, cattle stealing, 'destroying silk on a loom', 'wilfully wounding a horse', sheep stealing, swearing false oathes, 'impersonating another to receive a seaman's wage', and similar.
In London, the executions at Tyburn (near Marble Arch) were public spectacles - ballads, speeches from the gallows, the exitement of the crowd and a worrying trend (from the standpoint of the ruling classes) of sympathy with certain types of criminals such as Highwaymen. From the point of view of the ruling classes the importance of public execution was the role of spectacle: pomp and ceremony, the awe-inspiring shadow of the gallows. Execution was as much a symbolic exercise of class rule as an efficient method for dealing with crime. But it should not be thought that the Bloody Code was purely and simply the old aristocracy attempting to enforce traditional feudal conceptions of punishment descended from the Middle Ages in which the public execution demonstrated the might, power, and awesome majesty of the King as he publically executed those subjects who had dared violate his law. That was of course part of it, but the emerging new urban capitalist society and its representatives, the new middle classes, the bourgeoisie did not dispute with the older landed interests that the matter at hand was rising crime and the disciplining of the new urban mob. Execution was the discipline of last resort which lay behind the new economic forces which would hopefully discipline the new working class. As Edward Thompson put it, In place of the old controls of deference and a variety of local punishments
The Bloody Code was thus certainly an intensification of traditional techniques of control but it was being applied to a whole new range of offences and thereby becoming harsher. This harshness was part of an attempt to grapple with the new tasks of disciplining the working class which, working for wages rather than by custom and tradition, had abandoned the old habits of deference towards the 'Master' (employer)
But hanging was a blunt instrument and contradicted the new ideas gaining ground which would eventually substitute the quieter but more enduring discipline of the Penitentiary (prison) for the 'shock and awe' of the gallows. Despite the severe penalties relatively small numbers of people were caught for precisely the reasons discussed above: the absence of effective police. Smaller numbers were indicted even when caught as victim-prosecutors thought twice about intiating a prosecution, even if they could afford it, that might end in death. Ideas and sensitivities were changing. Despite the fear of the new urban masses the new attitude was to concentrate on how they could be disciplined and made into compliant workers rather than how they could be terrorised and killed.
Thus even among those actually convicted of capital offences (offences carrying the death penalty) far fewer were actually hung. Thus in London and Middlesex between 1749 and 1799, in 24 out of these years at least half of the capitally convicted were reprieved. Juries were increasingly reluctant to send petty criminals to the gallows. This reflected, especially in urban contexts, less the 'mercy' dispensed by the landed aristocracy by a word in the ear of the magistrate and more the concern of the rising middle classes (who were sitting on juries) that the punishment should precisely fit the crime. Judges reprieved, and juries tended to convict of a lesser offence those whom they thought should not go to the gallows. Ideas of proportionality, and that punishment for most ordinary crime should be a reforming experience rather than a public spectacle and pageant of power, were gaining ground
Transportation to the Americas and later, Australia, was the second common penalty and many hangings were in fact commuted to transportation. Transportation began in 1718. By the American War of Independence in 1775, around 50,000 indentured convicts had been sent to these colonies. Judges who sat in courts in the port cities such as Bristol and Liverpool were often wealthy merchants and plantation owners. While the main labour force for their sugar and cotton plantations were slaves from Africa, they thought nothing of sentencing petty criminals to years of hard labour on their own property. While the conditions in the penal colonies were often as harsh as on the slave plantations, there was a crucial difference: the convicts could, in theory, look forward to freedom after they had served their sentence, while the slave could not.
After American Independence penal colonies were continued in Jamaica and other Caribbean islands, but transportation declined and, with the decreasing use of the gallows, many convicts were housed in 'hulks' - disused ships anchored in the Thames Estuary. In 1787 transportation began a new lease of life with penal colonies in Botany Bay and Van Dieman's Land (in Australia) Transportation was officially abolished in 1857 but well before that date had slowed to a trickle already due to mounting protests from Australia. The whole attitude to punishment on the part of the ruling class was changing. Transportation was essentially a transitional phase in the move from execution to imprisonment as the core of punishment.
Beattie, John (1986) Crime and the Courts in England 1600-1800. Princeton University Press.
Beattie, John (2001). Policing and punishment in London, 1660-1750: urban crime and the limits of terror. Oxford: Oxford University Press.
Hay, Douglas (1975) 'Property Authority and the Criminal Law' in Hay, D. et al.
eds. Albion's Fatal Tree: Crime and Society in Eighteenth Century England. London: Allen Lane.
Langbein, John (2003) The Origins of the Adversary Criminal Trial. Oxford: Oxford University Press.
Philips D. (1977) Crime and Authority in Victorian England: The Black Country 1836-60. London: Croom Helm
Philips, D. (1980) 'A New Engine of Power and Authority' The Institutionalisation of Law Enforcement in England 1750-1830 in Gatrell, V. et al. eds. Crime and the Law. London: Europa Publications
Rawlings, Philip (1999) Crime and Power: A History of Criminal Justice 1688-1988. London: Longman.
Thompson, Edward. (1968) The Making of the English Working Class. Harmondsworth: Penguin Books.
Thompson, Edward (1977) Whigs and Hunters: The Origins of the Black Act. Harmondsworth: Penguin Books.