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 utmost importance to them both. Hay states that ideology was so effective that it seemed to people to be ‘the product of their own minds and own experiences’. Also it did not ‘seek total control’ and in fact at times sacrificed punishment ‘to preserve the belief in justice’ through the system of pardons. (sort out footnotes for this paragraph)
Majesty was also very important in giving an air of authority and power to the law. This can be seen in the ceremony involved in the courtroom such as the judge’s attire and lectures from judge to jury, a kind of secular sermon heard also by any other people in the courtroom, denouncing the crimes in question. Hay cites judge Sir Dudley Ryder as a source for attaining the purpose or ‘flavour of paternalism’ employed. This attention to formality and the submission of all to the rules of the law actually helped to strengthen it as an ideology and distance it from appearing to be under ruling class control, ‘it became a power with its own claims, higher [than all those involved even the] assize judge himself’.
Thus Hay feels the appearance that justice was being served was also another crucial factor. He refers to the numerous charges ‘founded upon excellent evidence and conducted at considerable expense’ that failed due to mistakes on the indictment, the written account of the charge. Hay suggests that what was really inefficiency in the process of prosecution was inadvertently functional, helping the illusion of objective rules and making it seem to be something that all had to comply with. He states ‘it’s very inefficiency, its absurd formalism, was part of its strength as ideology’.
Hay also points to part of the ‘lore of politics’ in England: that social class would not save any Englishman from the death sentence. Yet in the following sentence tells us that ‘this was not, of course, true. Hay explains this belief was well sown into the fabric of the law and into peoples consciousness, and was aided by the large amount of publicity surrounding trials where the outcome was that a gentlemen was to be sent to the gallows. Thus Hay shows us (as Blake’s poem reads) how ‘mind forged manacles’ were created for the common man by his own belief that all men were equal before the law. No gentleman would admit ‘that justice itself was but another part of the system’, as they were aware that their security as the ‘ruling class’ hinged on ‘belief in the justice of their rule’, a rule that they all wished to retain. However as Hay has shown us, the English criminal law was not concerned with equality and justice but with the interests of those propertied Englishmen who ruled.
Hay sees mercy as perhaps the most vital tool in the process since it helped create belief in the system and thus legitimised it in the minds of those who could not see its actual workings. Hay tells us that mercy was gained through patronage and ‘personal ties, not the distant decisions of bureaucracies’ a fact gentlemen would be unwilling to attest to. However pardons were depicted ‘as acts of grace rather than as favours to interests’ and leant a moral appearance to an arbitrary power so masking the class interest of the law.
During the process of prosecution mercy could be employed by the upper class which, Hay tells us, ‘helped create the mental structure of paternalism … especially where the prosecutor was a landed gentleman’. 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. 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.
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. As a result the jury, was made up of the propertied sections of society, again setting them in place to determine the outcome of any individual trial.
The picture painted so far by Hay shows the upper classes legislating for their own interests and being in place to further manipulate implementation of the law when or if they thought it necessary. Another dimension he identifies which supports his argument are the difficulties the poor faced if they wished to use the law that was apparently rightfully theirs. Hay tells us that the poor lacked the money to prosecute should they have the need. He states that most cases on behalf of the poor were initiated or funded by ‘employers, landlords or local associations for the prosecution of felons’ who were motivated by a ‘tangle of self-interest and paternalism’.
The next article that will be dealt with is by P. King. King’s article agrees with Hay in the main, seeing the law as a seemingly fixed system which in fact had a ‘highly discretionary nature’. He also accepts that ideology was of great importance in perpetuating the belief that all were equal under the law, and that the law was shown to be unequal by the fact that petitions that were most successful when made by men of the highest social status, although he tells us the middle class also were heavily involved with petitions and did achieve similar success to men from a higher social group. He tells us that ? % didn’t bother to petition, which may have been because they lacked the connections. He also mentions that the system did not matter solely to the ruling class, though Hay’s article makes this clear, while stressing that control of it lay in their hands. King’s article also makes very good use of figures, that are helpful to widen the picture but also at times state the obvious by solemnly counting descriptions of ‘good character’ in petitions aiming to save the accused. With many sources it is hard to reduce the evidence to a tick or a cross and in doing so much can be lost.
Where King begins to differ from Hay is in his judgement of Hay’s work as too being narrow and excessively focused on the ruling class. He sees a larger picture that includes involvement of ‘individuals of widely differing social and economic status’ within the law, noting, for example, the high proportion of middle class acting as character witnesses. He does not see this involvement as equal by any means but finds evidence of considerable ‘discretionary power…available to middling men and in a more limited way to the labouring poor’. He also finds evidence to suggest that sentencing was harder on richer men as they could not plead poverty as could those lower down the social scale.
King puts in question Hay’s position by providing information on things that Hay does not show any sign of thinking about, such as age, which was a very important factor in the sentencing, with ‘youth pleaded as a general mitigating circumstance’. He also informs his reader of the large amount of support given by the courts to the lower class in order to mount prosecutions, and tells us that this funding was not given equally to the middle class. Thus a picture emerges in King’s work that is based in a similar structure to Hay’s, but with the middle class inserted and allowance for slightly more freedom for the lower class and slightly less control in the hands of the upper class. King even points to some co-operation between the upper and middle classes, even though there were some issues on which their interests differed. King concludes that investigation of the legal system in fact challenges E. P. Thompson’s two-class model, within which Hay is working, by revealing a deeper and more complex pattern of social relations.
One interesting point in King’s article is the discussion of poor laws that were largely in the hands of the middle class. King suggests these to be very important, especially in daily decisions ‘made by parish officers’ even though they ‘may have had little impact on formal records’. This draws attention to differences in the workings of the system between London and the rest of the country, is agreed upon by Hay. King states that the poor laws ‘established men of middling sort in the small communities’, though not so much in London. The third article by Langbein disputes this. He claims that English criminal procedure was a national system and that ‘the ‘fundamental principles applied equally in the metropolis and in the provinces’. He also cites King’s evidence a lot to argue for more involvement of the middle and lower classes and sees the system as being there to protect the poor.
Langbein’s main problem with Hay’s work, perhaps prompting his subsequent attack, is caused by Hay’s claim of a ‘ruling-class conspiracy’. By this Hay seems to have meant that all members of the ruling class were aware that they sought to keep power in their hands (‘one of the things gentlemen knew was to preserve the power of the landed’ find p. no), not in an open way involving conscious conspiracy but through an unconscious (remove!) individual desire to retain power for people such as themselves. However, even Langbein has to agree with Hay that the aristocracy were treated with ‘special courtesy and regard’.
Langbein also cites benefit of the clergy to explain new legislation produced as a counter to this. He also claims juries had a lot more power than has been noted and were not much influenced by the judge. However he offers little evidence. He amazingly compares the fact that people today are treated favourably if they have respectable people as character witnesses, surely such practice cannot be used as a defence due to the differing degrees of effect the caused. [NOT CLEAR] One last claim of Langbein’s is to state that these crimes were not new and had been around since the middle ages. 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’.
Bibliography
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Hay, D., Chapter 1, ‘Property, authority and the Criminal Law’, in The Historical Journal, 27, 1, (1977).
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King, P., ‘Decision-Makers and Decision-Making in the English Criminal Law’, in The Historical Journal, 27, 1, (1984), pp.25-58.
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Langbein, J., ‘Albion’s Fatal Flaws’, in Past & present, No. 98, (1983), pp.96-120.
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Linebaugh, P., ‘(Marxist) Social History and (Conservative) Legal History: A reply to Professor Langbein’, in N.Y.U. Law Review, 60, 2, (May 1985), pp.212-243.
Douglas Hay, Property, Authority and the Criminal Law, 1977, p. 18.
Peter King, Decision-Makers and Decision-Making in the English Criminal Law, 1984, p. 26
John H. Langbein, Albion’s Fatal Flaws, 1983, p. 99