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Legal History |
JOHN BEATTIE[∗]
I met Douglas Hay when he was a student at the University of Toronto in the late 1960s, a time when interest was developing in new areas of historical study, including the experience of social groups well below the elite, and aspects of politics and authority outside the high political arena of Westminster and the court. Political events on both sides of the Atlantic undoubtedly helped to focus interest on the history of popular politics, the behaviour of crowds and collective protest, and encouraged study of other areas of social life that promised to provide evidence for and insight into the lives of ordinary men and women, matters that had not hitherto been at the forefront of academic historical work. My own interest in the issues emerging in the new social history drew me to the study of crime and the operation of the criminal law in the early eighteenth century, a period in which I had been working on other subjects. Douglas Hay’s engagement in these matters emerged in his early graduate work, in a seminar paper on aspects of violence in Wiltshire in the seventeenth and eighteenth centuries, based on quarter sessions records. Soon thereafter he went to England to study with Edward Thompson, whose Making of the English Working Class (1963) had done so much to encourage interest in what was coming to be called history from below. Thompson was by then teaching at the new University of Warwick, directing a seminar which attracted several people interested in the social history of crime and the criminal law, including Peter Linebaugh, John Rule, and Cal Winslow. Edward Thompson’s own interest in the criminal law was focused on the Black Act of 1723 that was to be the subject of his Whigs and Hunters, published with Albion’s Fatal Tree in 1975.[1]
Interest in crime and the criminal law in the eighteenth century had been emerging elsewhere at the same time. It was considerably aided by the massive and immensely useful volumes that Sir Leon Radzinowicz had published over the previous two decades.[2] But the ambitions and intentions of those engaged in the new social history of the law took them beyond the issues raised in Radzinowicz’s work and beyond the printed materials on which it had principally rested. The new scholarship depended fundamentally on an exploration of the manuscript records of the courts, records which lay largely neglected in the county and borough record offices, which housed the massive collections of quarter sessions records, and in the Public Record Office in London (now The National Archives), where the assize rolls had only recently been catalogued and made available, but not yet fully cleaned and repaired.
Work on the court records was in its infancy when Albion’s Fatal Tree was published. In thinking about the importance and influence of that volume, it has to be emphasized that very little had been written by 1975 on the social history of crime and the workings of the criminal courts. The Warwick volume came as a great revelation, encouragement, and challenge. Several of the essays illuminated popular attitudes towards the law by studying offences that were not universally regarded as serious crimes: smuggling, wrecking, the sending of anonymous threatening letters, and, in Hay’s second contribution, poaching. In an essay of continuing importance, Peter Linebaugh examined riots at Tyburn against the attempts by agents of the surgeons to take the corpses of the condemned for dissection, for public demonstrations and for instruction in anatomy. But it was Hay’s introductory chapter, ‘Property, Authority and the Criminal Law’ that drew the greatest attention. That essay was immediately and immensely influential because of the striking brilliance and power of its writing, the breadth and significance of its argument, but also in its revelation of what a social history of the law might look like, setting out a framework and implicitly posing questions for research.
‘Property, Authority and the Criminal Law’ offered explanations that made sense of the shape and form of the criminal law and of the discretionary character of its administration; it addressed the paradox that while numerous capital statutes were added to the Bloody Code in the eighteenth century, the level of execution remained stable; and it offered an explanation of why the landed elite who dominated social and political life resisted the reform of the law for so long even when it was clear that as an instrument of crime control it was failing badly. The answer, Hay argued, was to be found in the mental and social structure of the eighteenth century and in the role that the discretionary enforcement of the criminal law had come to play not merely in the protection of property, important as that was, but in the maintenance of those bonds of obedience and deference that enabled the landed elite to sustain its leadership of the society without a need for a standing army or professional police. The law, that is, was an ideological instrument that helped to maintain the authority of the ruling class. The key to its effectiveness was to be found in the way the law was administered, in the way a system that was overloaded with capital punishment provided patrician society with opportunities to exercise influence not only over the making of the law, but also over decision-making at various stages of the criminal process. Of particular importance to the leadership of their communities was the influence the elite were able to exercise over the royal power to pardon offenders sentenced to death. In the decisions that condemned some of the convicted to be hanged and others to be transported, imprisoned, or even allowed to go free, the word of the men of property, Hay argued, carried the greatest weight. The administration of the criminal law of the eighteenth century thus had importance for the ruling class well beyond the punishment and prevention of crime and, whatever its weaknesses, encouraged their resistance to its reform.
‘Property, Authority and the Criminal Law’ attracted attention across many disciplines and, remarkably, has been reprinted in more than twenty collections of essays. It did not, however, go unchallenged. John Langbein’s was the most robust response since he disagreed with virtually all aspects of Hay’s argument about the way the law was administered and with the possibility that control of the criminal law could have contributed significantly to sustaining the political and social dominance of the propertied elite.[3]
For many historians of crime and criminal justice in eighteenth century England, the questions Hay raised in ‘Property, Authority and the Criminal Law’and the explanations he offered, helped to bring some important issues into focus and to stimulate research. The result was work that, while acknowledging the brilliance of Hay’s introductory essay, sought to modify his view of the way the criminal law was managed. Within a few years, a group of historians, all but one of whom had been graduate students at Cambridge, produced their own volume of essays modeled on the case-study approach of Albion’s Fatal Tree. Some of those essays affirmed and others questioned the conclusions of the Warwick volume, as the editors said in their introduction. But the principal theme that emerged from these essays was an argument that the criminal law served the interests of other groups in society besides the propertied elite. Men of modest means, the argument ran, participated in the decisions being made at various stages of the criminal process, and a variety of groups in society were able to use the law to protect their interests. The law, the editors wrote, ‘was not the absolute property of patricians, but a multiple use-right available to most Englishmen,’ except the very poorest.[4]
That theme of broad participation in the administration of the law was also developed at length by Cynthia Herrup in her study of Sussex.[5] And within a few years work appeared on other aspects of the criminal process involving issues raised by ‘Property and Authority.’ Hay’s sense that capital statutes were readily passed by parliament at the behest of interested individuals with little debate stimulated significant work, for example, on the broader issue of how legislation in general was passed, who was responsible for the introduction of bills into the house of commons, and how many and what kinds of bills failed to pass and why.[6] The role of social groups other than the propertied elite in the work of the courts was investigated in other research, particularly into the composition and importance of trial juries at the assizes and at the Old Bailey, the equivalent of the assizes in London.[7]
It is impossible to pursue all those lines of work here. I will, however, say a little about some of the research, including my own, that has taken up what is perhaps the central element of Hay’s argument for the class-based character of criminal administration – the matter of the way the royal mercy was administered and the influences at work in the decisions to pardon some offenders and condemn others to death.
Peter King addressed this subject in a 1984 article and in his recent book on the criminal process in property offences in which he examined the extent and the consequences of the discretion available to a wide variety of actors, or decision-makers as he calls them, at every stage of criminal prosecution – from the identification and apprehension of a suspect, through pretrial process, the criminal trial at the assizes, the verdicts found by the grand and petty juries, sentencing, the pardoning system, and punishment.[8] King engaged most directly with Hay’s views of the relationship between law and society in his discussion of pardoning procedures and practices.
With so many property offenders threatened with execution, the monarch’s power to pardon and to impose an alternative punishment on some of those facing the gallows was an important, indeed a necessary element in the administration of the criminal law. At the conclusion of virtually every assize session, the judges commonly reprieved some of those they had just sentenced to death – in effect, granting them a pardon, though that had to be formally confirmed by the monarch. Those who were left to hang and others on their behalf had the right to petition the king for mercy. Many did so, some successfully. The question that Hay posed was on what grounds were such royal favours granted? His conclusion was that the most important element in the process of winning a pardon was the support of someone who could influence the judge, when he was asked by the king’s ministers to report on the case, or the officials in London most immediately concerned in the pardoning process. In Hay’s view, pardons were most effectively won by those who had the support of someone of high social standing; for those who could successfully influence the decision, the grant of a pardon was a confirmation of their elevated position in society, an element and mark of the patronage that sustained their local authority and the deference accorded to them.
Peter King explored this subject initially in his 1984 article by examining all the documents in the Home Office files connected with efforts to obtain pardons for convicted offenders in a two-year sample, principally petitions sent in behalf of the accused and judges’ reports of the relevant trials over which they had presided. He included that data in his recent book, expanded on it, and discussed it in a more searching and complex way than in his earlier article. His principal conclusion was that a wider variety of people than Hay suggested in ‘Property, Authority and the Criminal Law’ engaged in efforts to win pardons for offenders condemned to death. King agrees that the support of member of the aristocracy or a man with significant political influence was particularly influential, especially in overcoming the reluctance of a trial judge to support a grant of the royal mercy. But, he argued, large numbers of petitioners were men of middling social standing – tradesmen and craftsmen and the like – and their support was as likely to be as successful as that of landed gentlemen. Briefly stated, King’s conclusion was that for the most part pardons were granted not as favours to important men and women, but very largely for reasons connected with the authorities’ judgement of the seriousness of the crime that had been committed and of the character of the offender – their youth, their previous conduct, the likelihood that they would be willing to work to support themselves and not return to crime. The testimony of respectable and settled members of the community who knew the defendant and his or her family provided in many cases sufficient evidence to win a pardon.[9] A broad middle range of the population participated in this aspect of the administration of the criminal law, as in others, no doubt because their interests were also served by its effective enforcement.
A further complication of the pardoning system emerges when the situation of London is considered. The capital was by far the largest city in England, with a population of close to a million people by the end of the century, many of whom were largely transient. Many more property offences were committed there than elsewhere in the country and by offenders who would not readily be able to call on settled and respectable citizens (let alone patricians) to support them if they faced a death penalty. In addition, the process by which pardons were considered was very different there. After the Revolution of 1689, the pardon process was directly in the hands of the cabinet, sometimes meeting with the monarch present, sometimes not. No reprieves were awarded at the conclusion of the sessions at the Old Bailey, the equivalent in the capital of the county assizes. Rather, the recorder of London, who was the sentencing officer of the court, was charged with the duty of reporting to a meeting of the cabinet the cases of all those who had been sentenced to death at one or more previous sessions and receiving in return decisions as to who among the defendants was to be executed and who granted a pardon. In preparing for these occasions, the recorder typically wrote out what came to be in the eighteenth century a lengthy report on the trials, often based on the account in the printed Proceedings, and spoke to this at the cabinet table. The recorders’ reports that remain among the state papers suggest that the issues of greatest importance to the king’s ministers were the nature of the offence – particularly the level of violence that had been involved – the age, gender, and criminal record of the defendant, and the evidence given at the trial by the witnesses, both for the prosecution and defence. There seems to have been limited opportunity for the play of influence in this procedure – though the recorder or ministers may have been approached by supporters of the defendant without that leaving a documentary record, and it is of course exactly by those means that members of the social and political elite, had they wished to become involved, could have had a decisive influence over particular cases. I would not want to say that decisions at these meetings rested on something that might rise to the level of principle, but the evidence accords with Peter King’s account of the pardoning process on the assizes in which he sees similar factors being emphasized in pardon petitions and in judges’ reports to the king.[10]
My point in mentioning these few lines of research very briefly (and without attempting to include all the work that could be cited), has been simply to underline the important place of ‘Property, Authority and the Criminal Law’ in the history of the field. Much that has been written about the criminal law and its administration in the eighteenth century has been in response, directly or indirectly, to Douglas Hay’s essay.[11] There can be no doubt that he would disagree with a great deal of it – as we will learn when his forthcoming study, Crime, War, and Justice in Industrial England 1740-1820, is published. In the meantime, he can have the satisfaction of knowing that as a graduate student in 1975 he published an article that has been an important stimulus to work in a field that has burgeoned over the past thirty years.
[∗] University Professor Emeritus of History and Criminology, University of Toronto, BA (San Francisco), MA (Berkeley), PhD (Cambridge).
[1] E P Thompson, Whigs and Hunters: the Origins of the Black Act (1975); Douglas Hay, Peter Linebaugh, John G Rule, E P Thompson, and Cal Winslow, Albion’s Fatal Tree: Crime and Society in Eighteenth-Century England (1975).
[2] Sir Leon Radzinowicz, A History of the English Criminal Law and its Administration since 1750, 4 volumes (1948-68); a fifth volume was published with Roger Hood as co-author in 1990.
[3] John H Langbein, ‘Albion’s Fatal Flaws, Past and Present, 98 (1983) 96-120; and see Peter Linebaugh’s reply to this essay: ‘(Marxist) Social History and (Conservative) Legal History: A Reply to Professor Langbein,’ New York University Law Review, 60 (1985) 212-43.
[4] John Brewer and John Styles (eds), An Ungovernable People: the English and their law in the seventeenth and eighteenth centuries (1980) 20.
[5] Cynthia Herrup, The Common Peace: participation and the criminal law in seventeenth-century England (1987).
[6] Joanna Innes, ‘Parliament and the Shaping of Eighteenth-Century English Social Policy,’ Transactions of the Royal Historical Society,’ 5th series, 40 (1990) 63-92; idem, ‘The Domestic Face of the Military-Fiscal State: Government and Society in Eighteenth-Century Britain,’ in Lawrence Stone (ed), An Imperial State at War: Britain from 1689-1815 (1994) 96-127; Julian Hoppit, ‘Patterns of Parliamentary Legislation, 1660-1800,’ Historical Journal, 39 (1996) 109-31; idem (ed.), Failed Legislation, 1660-1800: extracted from the Commons and Lords Journals (1997).
[7] See the essays by Hay, King, and Beattie in J S Cockburn and T A Green (eds), Twelve Good Men and True: The Criminal Trial Jury in England, 1200-1800 (1988).
[8] Peter King, ‘Decision-makers and Decision-making in the English Criminal Law, 1750-1800, (1984) 27 (1) The Historical Journal 25-58; Crime, Justice, and Discretion in England, 1740-1820 (2000).
[9] King, Crime, Justice, and Discretion (2000) 9.
[10] J M Beattie, ‘The Cabinet and the Management of Death at Tyburn after the Revolution of 1688-1689,’ in Lois G Schwoerer (ed), The Revolution of 1688-1689: Changing Perspectives (1992) 218-33; idem., Policing and Punishment in London, 1660-1750 (2001) ?. For conflicting views of the character of that meeting in the 1820s, see V A C Gatrell, The Hanging Tree: Execution and the English People 1770-1868 (1996) chs 20-1; Simon Devereaux, ‘‘Peel, Pardon, and Punishment,’ in Simon Devereaux and Paul Griffiths (eds), Penal Practice and and Culture, 1500-1900: Punishing the English (2004) 258-84; Boyd Hilton, ‘The Gallows and Mr Peel,’ in T C W Blanning and David Cannadine (eds), History and Biography: Essays in Honour of Derek Beales (1996) 88-112.
[11] That it continues to have influence beyond the eighteenth century can be seen in a recent fine book by Krista Kesselring, who concludes that the patronage inherent in the granting of pardons (though in this case with the value accruing to the monarch) was an important element in the growing authority of the Tudor state. K. J. Kesselring, Mercy and Authority in the Tudor State (2003).
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