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 200'1, 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 2. 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'3. In this process he sees 'three aspects of the law as ideology: majesty, justice and mercy'4. 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.
especially where the prosecutor was a landed gentleman'20. Thus when the poor had been checked and the message made clear 'it was the duty of the gentleman to protect his people' in this paternalistic structure. He tells us that in fact about half of those sentenced to death were not executed. The use of the royal pardon enabled the ruling class (who alone were in a position to solicit it) to decide if offenders could be spared their lives and instead transported or imprisoned. Hay also draws attention to the fact that transportation could be of benefit to the ruling class through the labour it created, more evidence of a system designed for their needs. So it can be seen that the ruling class created not just laws that worked in their favour, but a whole system which they were best placed to manipulate. Hay suggests they did so at their discretion and in their interests through the use of patronage, pardons, petitions, and character witnesses, in all of which 'the word of a man of property had greatest weight', and also through benefit of the clergy, and the inefficiency of the law.21 This being so he states that the majority of the population, the poor, who lacked any substantial property, 'met the law as criminal sanction: the threat' and reality of punishment should they break the law. 22 Hay looks at the involvement of the jury to show the hand of the ruling class at work. To be tried by one's equals was part of the guarantee of a fair trial. However imposition of a property qualification prevented a majority of the population from participating. The ruling class did not feel that the 'common Englishman' could be trusted, on the ground that his interests differed from those of the elite. As a result their notions of crimes would also differ. Hay offers as an example the claim that 'a panel of poor would not convict a labourer who stole wood from a lord's park', yet this would have dismayed the elite.
In the last article, which is mostly a response to Langbein and a defence of Hay, Linebaugh jumps on this comment to state that people were without pockets to be picked or shops to be lifted in that period, also pointing out that the importance of the venue of the crime was also now a significant factor. As a result Linebaugh claims that Langbein is extraordinarily unhistorical and takes a very narrow view, unsupported by detailed evidence of the quality that Hay produces to support his argument. (this whole paragraph needs sorting!) An interesting point raised by King is how significant the poor laws were compared to the criminal law. It seems that there were ties of patronage travelling vertically between the lower, middle and upper classes. It perhaps also follows that the more national and lethal system of control through criminal law was a product of, and controlled by the upper class, and the poor law was more in the hands of the middle class. The concerns of the criminal law certainly make it seem likely that they are a product of the upper class. Hay's article has been given most space in this essay because I judge its fundamental assertions to be correct. Its main shortcoming is that it lacks part of the picture through neglect of the part the middle class played in the system. This is neatly accounted for by King leaving only minor discrepancies between the two works. Langbein, by misinterpreting a statement in Hay (concerning conspiracy of the upper classes), is led to attack the whole piece unconstructively and with little evidence to support his preferred views. Lastly, Linebaugh raves in defence of Hay and criticism against Langbien, offering an enjoyable article despite adding little more to the picture, apart from his treatment of sanitation. In conclusion Hay's article tells us the criminal law wasn't just a legal system but a system of social control. If this is true and the criminal law was crucial for sustaining the hegemony of the upper class then it 'helps us to explain their resistance to suggestions for drastic legal reform'35.
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