A Critical Review of 'Property, Authority and the Criminal Law' by Douglas Hay.

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Ellen Jones

A Critical Review of ‘Property, Authority and the Criminal Law’ by Douglas Hay

This essay is a critical review of the first chapter of ‘Albion’s Fatal Tree’, ‘Property, Authority and the Criminal Law’ written by Douglas Hay. It will look in turn at Hay’s article and subsequent publications produced as a result of, or in response to the article. Each of the four authors discussed, through his differing politics, offers a different explanation of the relationships between class and crime in eighteenth century England. They try to account for large number of capital statutes that were produced, ‘from about 50 to over 200’, alongside the lack of corresponding numbers of subjects receiving the sentence of death.

Hay’s thesis covers many points about the systems of control in eighteenth century society. Its main line is the proposition that a small ruling elite created a paternalistic system controlling the larger population through the criminal law. This criminal law was concerned primarily with authority and secondly with the protection of property. Hay offers a range of ways in which this was carried out, such as upper class control of the legislative process in parliament, reflected in legislation that mostly ‘concerned offences against property’, and in the actual prosecution process in which he suggests the judge, jury and character witnesses were largely drawn from the upper classes . The small ruling elite had therefore placed themselves in a position from which they could further control the process and thus the population at large. Hay also sees ideology as ‘crucial in sustaining the hegemony of the English ruling class’. In this process he sees ‘three aspects of the law as ideology: majesty, justice and mercy’.

Eighteenth century England differed from other European states as it lacked a police force. Hay suggests the reason for this was that the gentry were not willing to permit, or perhaps to risk, power being taken out of their hands. They remembered ‘the pretensions of the Stuarts and the days of the Commonwealth’ and also associated a police force with monarchical control due to their observations of France.  Hay suggests the upper classes instead used the criminal law ‘more than any other social institution’ to make it possible to govern without police. Based on writings by men of the eighteenth century Hay suggests an increase in trade and population growth as factors contributing to the increase in the level of crime. He sees it as in response to these issues, rising crime and lack of a police force, that the upper classes produced such a multitude of capital statutes in this period. The punishment however was more to act as a deterrent than to cost the lives of all those who were found committing such a crime.

Hay suggests that the production of legislation was one way this system was forged. He is certain that Parliament, inhabited by upper class men, ‘did not often enact the new capital statutes as a matter of conscious public policy’. They were proposed, and accepted, without debate, to protect property interests of those who initiated their existence which were previously unprotected. He tells us that a large amount of new legislation was passed after 1688 yet most executions took place under old Tudor statutes. Hay suggests, as stated above, that these new laws had more the character of threats that could be used to make examples of subjects when necessary. He claims property, power and authority went hand in hand, and those who had property thus had power and authority. Hay believes the upper classes used their position as rulers to employ the criminal law to enforce a system of ‘bonds of obedience and deference’ that kept the masses in their place, protected their control and promoted their own interests. However he does not claim that this authority was ultimate and tells us it was constantly ‘re-knit’. His examination of the causes of three bills enacted in 1753, 1764, and 1769 further support this view. Suggesting it was with authority and laws bearing the threat of death that gentlemen sought to govern those below them in the social order and ‘enforced the division of property by terror’.

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Ideology was also very important. Hay states the law was ‘one of the chief ideological instruments’ and was ‘crucial in sustaining hegemony of the English ruling class’. By ideology he means ‘a specific set ideas designed to vindicate or disguise class interest’. As an ideology Hay sees this as combining ‘imagery and force, ideals and practice’ to shape the consciousness of English men. The English men referred to are both upper and lower class as, although its acceptance had very differing effects upon each of the two classes Hay refers to, he portrays a picture where it was nevertheless believed in and of the ...

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