How was crime kept within tolerable bounds in England in the Eighteenth century?

by Annab2609 (student)

University Degree Historical and Philosophical studies

How was crime kept within tolerable bounds in the eighteenth century?

In theory, the eighteenth-century criminal law was an unyielding, fixed and bloody penal code espousing the death penalty for a broad range of property crimes. In practice, however, it was a flexible system with the opportunity for discretion by the judge and jury with pardon and negotiation. Moreover, as the period went on and a new set of priorities developed the law changed and developed considerably, albeit with considerable resistance. There was an expansion of types of punishment, both transportation and imprisonment, and methods of control, in particular the beginnings of a professional police force, a colossal change from the Bill of Rights in 1689, which banned a standing army. Crime was, thus, kept within tolerable bounds by the combination of fear by example on the gallows and a flexible system of pardon in accordance with circumstance initially in the period, and was maintained by the law’s ability to adapt to new demands and concerns by 1830. This can be shown by analysing the mechanisms of the law from the centre to the periphery, participation in law-making, the idea of fear combined with mercy, the culture of deference and then how changing public opinion and opportunities shaped new reforms.

The idea of what ‘tolerable’ meant to the people of the eighteenth century, the extent to which crime remained at an acceptable level, and for whom in society it was tolerable needs to be examined initially. If we define tolerable as ‘able to be endured’, which obviously depended on social status and changed with new demands, it is still fair to say that by and large the mechanisms of law succeeded in meeting general expectations of social order. There was no serious or sustained opposition to law despite the different needs and concerns of different strata of society. Of course, it is clear from moves to reform and complaint from all quarters throughout the century that for many people crime, or possible more accurately how crime was dealt with, was by no means perfect. Whether in the satire of cartoonists, such as mock ‘tickets’ to executions, riots at executions, complaint in pamphlets and literary culture there were calls for change or complaint about the system. Moreover, the methods of maintaining social order and hegemony of the law was never complete and unbroken even in the most deeply rural and traditional counties. The most glaring weakness was dealing with riots or disturbances of any seriousness. Troops had to be used to suppress the Gordon Riots in 1780, to catch the Luddites in Nottinghamshire in 1811-12, put down peaceful protestors at Peterloo in 1819 and the Captain Swing Agricultural protests in 1830-1. In particular, London was different to most area in relation to crime where instruments of control were weaker, there was a highly transient population and a large body of disorderly poor and the class relationships that fostered deference could not exist. However, despite these weaknesses in law enforcement and thus where crime did not remain within tolerated bounds, in general it is fair to characterise the period as one that held respect for the law and its processes and dynamically changed to meet new needs.

There was a complex machinery of criminal justice that could be utilised to maintain crime in tolerable bounds. While some historians have focused exclusively on legislation from parliament, there was in fact a rich interplay between these nationwide statements and the localities. As Brewer notes in Sinews of Power the eighteenth century is misrepresented when it portrayed as a weak central state. If it had significant power to mobilise money and a military force, the parliaments could also have the power to spread its legislation and there were institutionalised links between central government and the localities. The key link, as had been for over 150 years, was the High Court Judges on Assize Circuits. They could communicate the work of government to magistrates and other local officers, presided over almost all trials for serious crimes and made sure of the implementation of new penal legislation and bear on local magistrates to implement other legislation. Essex County was, for example, fined by a judge for failure to comply with legislation of providing a sick room in the gaol in the 1780s. Extra-institutionalisation links of informal, social and cultural ties were also important and spread word from parliament to localities. Even if local officeholders were not being harassed by civil servants they would still trouble to implement new laws but they often did so because they shared the concerns that had prompted Parliament to pass them in the first place. The localities also have their own mechanisms of agencies of law enforcement: JPs and parish constables. The JP kept law and order through his position of influence, personal example and conduct, and paternalistic power over his people and the constables did the day-to-day warrants and arrests. It was not a one way flow from parliament to the localities, who were frequently consulted. In the 1780s the Proclamation Society invited each country to send to magistrates to debate and give their opinion on upcoming legislation in London in the spring of 1790 and both bills were laid before Parliament and succeeded (though with some further amendments).

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These structures and agencies for maintaining crime within tolerable bounds was augmented by the legislation itself, which as the century progressed became increasingly focused on capital punishment for crimes against property. Fear of retribution, thus, was considered a key preventative of crime and satisfied the concerns, perhaps as contended by some historians exclusively to the propertied classes. The number of capital statutes grew from about fifty in 1689 to over 200 by 1820. It is easy to overstate these numbers, and some were to simply to add more detail and specific crimes: such forging an entry in a North Riding of Yorkshire land register (1735), destroying Fulham Bridge (1725) and embezzling notes by servants of the Bank of England (1742). However, as a whole they added clout to power of the law and Hay describes the capital statutes as "the legal instruments which enforced the division of property by terror." New legislation gave the power to make terrible examples when necessary. Moreover, the Murder Act of 1752 made it possible for convicts bodies to be hung in chains or handed over to surgeons for anatomical dissection. The disgrace this bought upon the family of the malefactor made the sentence more terrifying than death itself.

At the same time as the century saw the growth in the number of capital statutes; it also simultaneously saw expansion of discretion and pardon at almost all levels of the judicial process through prosecutors, juries and judges. In a period when Parliament created huge numbers of new capital offenses against property and resisted calls for reform of the capital code, the proportion of death sentences actually carried out was small and declining. The combination of capital punishment and extensive discretion enabled judges to secure compliance to their rule both by means of coercion, with the occasional exemplary hanging, and benevolence, in the premeditated act of mercy in acquitting on a technicality, or securing a pardon. In general, society tended to think of justice in personal terms in a case-by-case basis and provided a counter-balance to the fear imposed by capital punishment and limited the extent it was used. Indeed, while in the counties three of six hangings in each, twice a year provided an occasion for lessons in justice and power, a greater number of victims would have revolted the people. Therefore, the circumstance of individual cases would be taken into account. Juries were more likely to be lenient in years of high prices, for example, and many prosecutors would issue mercy for bonds not to do it again or by signing a letter of apology to be printed in the county newspaper. There was also a reasonable tolerance to ‘social crime’, where the poor defended what they saw as their traditional rights, where only a few examples would be made rather than extending the full power of the law. Law was capricious and erratic but the barbarity of the criminal law tempered by circumstance by the judges and the opacity of the law meant discretion ad circumspection could be used.

A key-driving factor in this fine balance between punitive retribution and discretion was the wide participation of different social strata in the processes of law. Shared participation in the law made kept crime within tolerable bounds as there was feeling that it was universal and equitable. King has shown in his study of Essex that the rule of law was a uniquely inclusive and participatory ideal in English society. It represented a broad consensus and that it was possible for individuals or groups of widely differing social and economic status use the discretion we have discussed and adapt severity of the law in line with their needs, beliefs and ideas of justice. Bentham wrote, “The Law is every man’s best friend… To her the rich man owes his wealth, the poor man his subsistence; every man who is free, his freedom.” These opportunities were not always equally distributed, but wide discretionary powers were available to middling men and in a more limited way to the labouring poor. Over one-third of the prosecutors bringing felony cases to the Essex quarter sessions 1760-1800 were farmers or yeomen, exactly a third were tradesmen or artisans and between one-fifth and one-sixth were labourers and in assault cases two-fifths of prosecutors were tradesmen or artisans, over a quarter were labourers and just over one-fifth were farmers. The law was not just a tool or a channel for the interests of particular social groups, though this was variable and limited in some cases. Despite this, for those who the law was not financially accessible due to the cost of putting on a trial, Hay has shown that men of property would often assist the poor to prosecute out of self-interest and paternalism. Moreover, there was shared participation in the notion of equality before the law. As executions of forgery became more common, more ‘respectable’ villains went to the gallows, such as Reverend William Dodd who was executed at Tyburn in 1777. The impact of this was deep and law was an ideologically significant as a symbol of equality. When Lord Ferrers was executed in 1760 for murdering his steward there was a host of literature celebrating the law. These positive associations through shared participation in and acting within the law made crime tolerable as the system through which it was controlled was widely endorsed.

Despite the equality of law it still was bound in a framework and culture of traditional vertical social barriers and deference. The assize courts had a huge display of spectacle and ritual to display the power and hierarchy of the law. The judges were received with huge crowds escorted by trumpeters and javelins. In court they wore full red robes, lined with ermine and full-bottomed wigs. Blackstone asserted that ‘the novelty and vey parade of… [their] appearance have no small influence upon the multitude.” The flavour of paternalism was essential to law and order. The whole aim to impress and move the court and onlookers and thus perpetuate the concept of legitimate power in their minds. Patronage extended vertical change of loyalty that sustained deference and when this failed the obverse could be used in coercion.

There was, thus, a dynamic interplay between coercion and discretion with a wide participation in the framework of deference and traditional social hierarchies. It was this interplay’s ability to adapt and change throughout the century that maintained perceptions of crime as generally tolerable. Law and the strategies it used to enforce it could adapt and reform to meet new demands of society and changing circumstances. This meant that crime was kept within endurable limits by its flexibility to adjust to the changing bounds of what ‘tolerable’ meant. This is not to say it was a period of reform in general. In contrast, reform to the law was frequently thwarted by conservative attitudes seeking to maintain the status quo. Gillray’s Tree of Liberty (1801) shows the powerful ideological weapon of the preserving the law for conservatives in moves for reform inspired by the French Revolution. That being said the century did see key changes to attitudes and legislation about crime. The opening up and growth of the Empire allowed for a new means of punishment with the Transportation Act of 1718, which entirely reshaped punishment. As the century continues, Enlightenment ideals began to filter into law. Cesare Beccarua an Italian theorist rejected disproportionate and uncertain punishment and excessive use of capital punishment at the same time as the rise of the new public figure: the humanitarian reformer, including Gilbert, Wilberforce and Chadwick. This combined with polite attitudes of sensibility and the concern for rehabilitating the ‘morally fallen’ led the move to create lesser forms of punishment than death. Therefore, acts of parliament extended the range and scope of secondary punishments to be applied in place of death. Statutes of 1776, 1779, 1815 and 1823 paved the way for greater use of imprisonment with hard labour. Thus while between 1680-1750 punishments for those convicted guilty were 45% transportation, 20% death and 1% imprisonment, between 1650 and 1830 these proportions changed dramatically and while 35% where transported, now 27% were imprisoned, and less 12% faced the death penalty. In a more specific case in one list of punishments for January 1796, 9 received the death penalty, while 30 were transported for seven years, four were imprisoned for a year, and twelve for six months and fined 1s, including a Thomas Broadley.

Another adjustment was a result of Beccaria and other reformers plan to rationalise criminal law and have a “fixed code of laws which must be observed to the letter” weakened the use discretion and pardon, which had contributed so much to the maintenance of order previously, though did not eliminate it. However, the greatest change was the move to the establishment of a permanent police force. The end of eighteenth century saw both the upheaval of the French Revolution, the beginnings of the industrial revolution and an urban revolution. These spawned new ideas including the likes of liberalism and economic individualism and the fear of the potential effect of these greater freedoms on the masses, no longer restrained by traditional forms of control, led the governing class to abandon their long-held opposition to the idea of a police, which had been seen as entirely unconstitutional and flouting liberty. Thus, the professional police forces were appointed in a bid to re-establish control through new institutional means in 1819 in London.

This dramatic change in perception of dealing with crime shows the extent of the vibrancy of attitudes to crime and how it could be dealt with. In what would have been unimaginable in 1689, liberty had been traded off for order. Peel declared: “The time is come, from the increase in its populations… we may fairly pronounce that the country has outgrown her police institutions, and the cheapest and safest course will be found in the introduction of a new mode of protection”. This provides a neat concluding example of the flexibility of the treatment of crime and how it would develop, though not without opposition, to new concerns. Therefore, over the eighteenth century, crime was kept within tolerable bounds by this flexibility in law in its give and dynamism, initially in the interplay between discretion and harsh codes, and by the later period its adaptability towards new forms of punishment, prevention and methods of maintaining order, reflecting the whole host of opportunities and changing attitudes of the century.

J. Innes, ‘Parliament and the Shaping of Eighteenth-Century English Social Policy,’ TRHS1990

J. Innes and J. Styles, ‘The Crime Wave: Recent Writing on Crime and Criminal Justice in Eighteenth-Century England’, Jour.Brit.Stud. 1986

I. McCalman ed. Oxford Companion to the Romantic Age (1999)

P. Langford, A Polite and Commercial People. England 1727-1783 (1989)

J.M. Beattie, Crime and the Courts 1660-1800 (1986)

D. Hay, ‘Property, Authority and the Criminal Law’ in D. Hay et al eds, Albion’s Fatal Tree. Crime and Society in Eighteenth-Century England (1975)

P King, ‘Decision-makers and decision-making in the English criminal law, 1750-1800’, The Historical Journal, 27, pp.2558

Old Bailey Online Archive - http://www.oldbaileyonline.org/

J. Innes, ‘Parliament and the Shaping of Eighteenth-Century English Social Policy,’ p.74

J. Innes, ‘Parliament and the Shaping of Eighteenth-Century English Social Policy,’ p.89

J. Innes and J. Styles, ‘The Crime Wave: Recent Writing on Crime and Criminal Justice in Eighteenth-Century England’p.421

J. Innes and J. Styles, ‘The Crime Wave: Recent Writing on Crime and Criminal Justice in Eighteenth-Century England’p.425

D. Hay, ‘Property, Authority and the Criminal Law’ p.21

J. Innes and J. Styles, ‘The Crime Wave: Recent Writing on Crime and Criminal Justice in Eighteenth-Century England’ p.403

I. McCalman ed. Oxford Companion to the Romantic Age (1999) p.74

P King, ‘Decision-makers and decision-making in the English criminal law, 1750-1800’p.28

Own research in Old Bailey Records Online Data Search

Old Bailey Proceedings Online (www.oldbaileyonline.org, version 7.0, 07 November 2012), January 1796 (s17960113-1)

Quoted in D. Hay, ‘Property, Authority and the Criminal Law’ p.57

I. McCalman ed. Oxford Companion to the Romantic Age (1999) p.71

How was crime kept within tolerable bounds in England in the Eighteenth century?

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