F for Felon

Given their importance as an instrument of social regulation, it’s odd that the law and law enforcement were so long cold-shouldered by historians. From the time of Blackstone, legal history remained the province of lawyers, whose labours of love bore more relation to the apologetic hermeneutics of Bible scholars than to ‘historical method’. Common law was wisdom to be worshipped, rather than social text to be demystified. The history of policing and punishing had its shortcomings, too. In Britain, it took the form of a Whiggish story of progress, narrated in support of reformist agendas. Fabian historians homed in on an ‘Age of Reform’ from the late 18th century: Jeremy Bentham’s utilitarian penology, prison reform, campaigns against the death penalty and (the great watershed) the setting up of the Metropolitan Police by Peel in 1829. Before then, all was ancien régime darkness. Rejoinders naturally came from early Marxists, but their thinking was no less doctrinaire: law and policing were hammers of the poor, weapons of class oppression serving the privileged interests of landed capitalism.

Such simplistic readings of the criminal justice system were decisively challenged a generation ago by the bold reformulations of E.P. Thompson and his co-workers. In a series of inspirational writings – an edited volume, Albion’s Fatal Tree: Crime and Society in 18th-Century England (1975), and a brace of books: Whigs and Hunters: The Origin of the Black Act (1975) and Customs in Common (1991) – Thompson and Co offered far more sophisticated interpretations of the workings of the law in pre-modern England.

The Marxist in Thompson insisted that, of course, the law was the creature of the ruling class, and that at bottom it was one law for the rich and another for the poor; ‘Laws grind the poor, and rich men rule the law,’ ran Oliver Goldsmith’s lapidary line. But the functioning of the law, Thompson stressed, necessarily involved negotiated compromises: because it needed legitimacy, it had to possess a power not primarily coercive but consensual. To sustain hegemonic authority, the law had to be (more or less) accepted by the man in the street – anyone likely to be robbed or mugged and any potential juryman. After all, nobodies as well as nobs had their stuff nicked.

Capitalism had to be protected, and so capital statutes proliferated, rising to over two hundred in the Georgian century, taking in such heinous crimes as destroying fish-ponds and cutting hop-binds. The Waltham Black Act (1723) created fifty new capital offences at a stroke. Yet the aggregate of executions fell dramatically from its early Stuart peak, and law enforcement was quirky. That probably mattered little, Thompson explained, because the essence of law in action lay not in tightening nooses around the maximum number of necks or lashing the greatest number of backs, but in a theatre of terror and mercy, a conspicuous display of authority and justice orchestrated by the Bench. What ultimately counted was the majesty of the law.

Respect for the law as one of the glories unique to the British, along with the Constitution, was an ideology which worked, after a fashion. Of course it had plenty of critics – think of those Hogarth prints of snoring judges. Yet the nation at large could look to it for protection and redress, and take comfort in the fact that it was their peers who served as jurymen (going on trial was ‘putting yourself on your country’). In short, from the hue-and-cry to Tyburn Tree, the law and its enforcement were regarded not just as a series of government fiats and a ruling-class weapon, but as integral to the contested politics of community life.

John Beattie is among the finest exponents of this more historically sensitive approach to crime and punishment. His somewhat misleadingly titled Crime and the Courts in England 1660-1800 (1986) – a pioneering study of trends in crime and prosecution in Surrey – may now be seen as a prelude to a masterpiece. Policing and Punishment in London 1660-1750 bears all the marks of protracted archival digging followed by mature reflection. Beattie approaches the law and its enforcement as a system with its own internal rationales and logic. In fact, he says, it was a system within a system. The law generally coincided but sometimes conflicted with the wants of those in power, and there was continual need for running repairs and occasional overhauls. How well the system served the interests of its ‘customers’ (as we say nowadays) is a question central to his book.

Post-Restoration Londoners, he observes, got into a great lather over crime and criminals. They felt they were in the middle of what would now be called a ‘crime-wave’, endangering life and limb, persons and possessions. By the early 18th century all the talk was of professional and dangerous operators, and of organised gangs far more sinister than the casual cut-purse. Beattie concedes that this was to some extent a media panic, whipped up by emergent Grub Street, but he also highlights the new social circumstances conducive to rising crime, especially the growing scale and anonymity of the ‘great wen’, and the proliferation of things to steal in its new consumer society. There were not many pocket-watches to filch before the Restoration: sixty years on they had become the mobile phones of the day.

Beattie has taken on a monumental task: examination of all the property crime committed in the City of London (not the metropolis as a whole) which came before the Old Bailey sessions during the course of almost a century. The result is no narrow study of court procedures and verdicts, but a comprehensive account of crime and punishment at every stage, explaining how defendants ended up at the Old Bailey, ‘on their country’.

To grasp the old law-enforcement system involves a concentrated effort of defamiliarisation, and Beattie invites us to examine its operation through an anthropological lens. The scene as of 1660 looks in some ways hopelessly quaint: Dogberry and Verges still doddering their way around a capital which was about to house the Stock Exchange and the Bank of England. Policing remained the individual and autonomous responsibility of the City’s atomised wards, each of which appointed its own constables and watch (archaically bearing halberds, like extras in some heritage pageant). Unpaid, unwilling and unloved, there is no reason to think that they were eager beavers.

Their activities, however, were not meant to be equivalent to those of the modern Met. First and foremost they were there to keep the peace; it was emphatically not the job of constables to act as crime detection officers or as prosecuting agents. It was the responsibility of the citizen who had been burgled or beaten up to bring a prosecution (we would say ‘privately’), gather the evidence, then plead his case in court. Many victims were understandably reluctant: it involved too much time, trouble, cost and risk. Often uppity or fickle, juries could not be relied on to side with every plaintiff. A punter who, while in his cups, had his pocket picked by a streetwalker, might win little sympathy from honest citizens who thought that he’d got his just deserts.

Much crime never came to court. Keener to get their spoons back (at a price) than to see a miscreant swing, aggrieved parties might resort to informal mechanisms: offering rewards, for instance, advertising for the recovery of stolen goods, or turning to shady figures able to fix things for a consideration.

At the Old Bailey itself, proceedings likewise have a foreign air. A trial was essentially a matter of victim confronting defendant face-to-face: there were no lawyers. The plaintiff accused while the defendant pleaded – not just his innocence but his character. The absence of counsel made trials, by our standards, breathtakingly brief: a hearing, with the accused on trial for his life, might last only a few minutes before the jury retired. The court would expect to get through a clutch of cases in a day. As Pope said, ‘The hungry judges soon the sentence sign/And wretches hang that jury-men may dine.’ Judges possessed wide discretion, and there was always the wild card of royal mercy. It all makes today’s judicial system seem a little less of a lottery.

Given the crescendo of crime, relatively few of those accused of property offences actually came to trial at the Bailey – around 140 a year. Of them, fewer than 60 per cent were found guilty, and an average of only seven a year suffered the ultimate penalty of the gallows. There’s a paradox here: how was it that with crime so rife and with a criminal justice system intended to be severe – as reflected in the multiplication of capital statutes – so few were actually being made to pay for their crimes?

It was a discrepancy which caused contemporary outrage, and Beattie devotes much space to debates, fomented by Defoe among others, about the failings of the system and how best to bring the guilty to justice, punish them properly and deter would-be offenders. This, at least, has a pretty familiar ring.

Many distinct, piecemeal initiatives were taken which had some cumulative effect. Not all were directly to do with crime. A series of Lighting Acts required the maintenance of street lamps of a certain intensity at specified hours. The effect may have been similar to that of closed circuit TV: making street crime more visible may have driven lawbreakers to more covert and menacing crimes, such as breaking and entering.

Certain constructive reforms came in. Policing slowly grew more effective. The old superannuated constables and watchmen made way for men paid to do the job. The pay was poor, however, and the quality of recruits low – they frequently had unsavoury connections themselves. Critics complained that a more ‘professional’ police invited mercenariness and corruption, and threatened citizens’ liberties by setting up bands of snoopers and toadies. But it was the first step towards the creation of a corps with some occupational investment in countering crime.

Public-spirited zealots connected with the Society for the Reformation of Manners, an anti-vice society, set themselves up as vigilante prosecutors, hard on moral offences relating to prostitution and drunkenness. And there also emerged the self-employed ‘thief-catcher’ – the most celebrated was Jonathan Wild, immortalised by Fielding. Such self-appointed sleuths cashed in on the lavish Parliamentary rewards newly offered for those bringing successful prosecutions. With a thief-catcher clearing up to £140 per case – far more than an artisan’s annual income – it could be nice work. The reward system also opened up massive openings for corruption – false charges, blackmail, double-crossing – and, as The Beggar’s Opera shows, thief-takers frequently doubled as fences. But time and (bitter) experience led from rogues like Wild to the setting up in 1749 of the Bow Street Runners, London’s first semi-public agency geared to bringing miscreants to book, by Henry Fielding and his blind half-brother John.

The most innovative sections of this study involve analysis of the workings of criminal law in the court house and attempts to reform it. Beattie has discovered that, at the Restoration, surprisingly little of all the crime committed came before the City’s sessions. Why? The reason hinged on the basic legal distinction between felony and more minor offences (‘misdemeanours’); specifically, as respects property crime, between grand and petty larceny. Crimes against property involving sums of more than one shilling, as well as crimes of violence against the person, constituted felonies.

Petty larceny, Beattie explains, rarely came before the sessions. Presumably because the sheer quantity of such cases would have brought the courts to a standstill, those accused of petty theft were bundled off to Bridewell, the City’s house of correction, where, without formal trial, they would be given a whipping (or a wigging), or put to hard labour. It was almost an admission that minor crime was out of control, unstoppable and unmanageable. To preserve the majesty of the law, court time had to be reserved for serious offences.

For grand larceny and other felonies the statutory punishment was hanging: it was, in effect, the only severe penalty available. Faced with the supposed crime-wave, some advocated still greater ferocity, as expressed in the title of the 1701 pamphlet Hanging Not Punishment Enough. And indeed, more and more capital statutes were being passed: shoplifting goods worth more than five shillings was, for example, made a hanging offence in 1699, as the City’s shops grew ever more irresistible to the light-fingered.

Critics pointed out that turning lesser transgressions into capital offences could prove counter-productive. Decent souls might balk at taking life for a trivial offence and not prosecute at all, while cool realists doubted the sense of giving a petty thief every incentive to slit your throat as well.

Sober counsel, in any case, knew that it was not a viable option to hang Londoners by the hundred, perhaps for stealing just a candlestick or a bolt of cloth. And so, by long custom, the system in practice allowed certain ‘outs’. One was the old anachronism of ‘clergyable’ offences. According to this medieval legacy, anybody successfully claiming ‘benefit of clergy’ – which originally referred to membership of the clergy, but later became a matter of literacy equated with an ability to read the ‘neck verse’ from Psalm 51 – would be exempt from punishment (hanging) for specified, less serious, felonies, being branded instead on the thumb with an ‘F’ (for felon). This archaic practice had not only continued into Restoration times, but had been extended to women, more and more of whom were among the accused, on account of the rise of shoplifting. Quite quixotically, a high percentage of those accused of felonies effectively got away scot-free, at least if it was their first offence.

Acquittals, too, ran high, and some of the convicted were lucky enough to run up against a judge keen to exercise his discretion and recommend pardon. Received wisdom was that the ultimate punishment would be cheapened if applied to every felon indiscriminately. It should be reserved for arrant knaves: persistent offenders, bad sorts and those convicted of odious crimes – servants who stole from their masters or aided thieves to break and enter, and those guilty of robbery with violence. In this way, the ‘old regime’ possessed a flexibility which allowed selective targeting.

It was increasingly reckoned to be a blunt blade, however, on account of its ‘all or nothing’ quality: the guilty either ended up being carted off to Tyburn or, as with the great majority, in effect let off. There was no penalty, it was complained, ‘betwixt hanging and acquitting’. Convictions were not being obtained because of the narrow range of penal options. Furthermore, supposedly edifying hanging days all too often proved invitations to drunken revels – think of Hogarth again – just as the pillory might rebound and turn the pilloried into a hero, as happened with Defoe. All this compromised the majesty of the law. The problem reformers faced was clear: how could one more effectively mete out what later utilitarians would deem a ‘just measure of pain’? Was some preferable form of punishment in the offing?

Later reformers would hit on prison as the new solution, but no one around 1700 had any illusions about that: ‘prison’, a shrewd writer commented in 1726, ‘is a place fitter to make a rogue than reform him.’ One promising possibility had been tried before the Civil War: transportation. Pressure was put on merchants to ship convicted felons to the North American colonies. The practice faltered, however – there just wasn’t enough in it, either for the traders or for the colonists.

It was revived after the Hanoverian succession thanks to the zeal of William Thomson, Recorder of the City of London and Solicitor General, who, using new legislation, got public funds sufficient to turn transportation into a thriving alternative to the noose. It was patently no soft option, and yet, by not taking life, it won over the humane and enlightened and was unlikely to dissuade aggrieved parties from prosecuting or juries from convicting. Beattie shows how radical a switch in sentencing policy the transportation option proved – some 80 per cent of convicted felons were now shipped to the colonies. This is evidence of what he regards as the ‘flexibility’ of the authorities in rethinking punishment. Benefit of clergy was phased out, and the conviction rate rose.

In his conclusion, Beattie stands back and asks whether the criminal justice system worked. The answer is obviously ‘no’ – as is true of almost every criminal justice system there has ever been, anywhere. There is no convincing evidence that either the severe system (capital statutes), or the modulated alternative (transportation), or, for that matter, improved policing and prosecuting methods, significantly affected crime rates. As was widely noted at the time, property offences were essentially a function of poverty, social disruption and despair.

Criminal activities peaked in the City when, at the close of the wars of William III and Queen Anne, hordes of soldiers and sailors were demobilised and found themselves unemployed, destitute and socially adrift. It was a perfect recipe for crime, especially in a commercial society in which the gulf between rich and poor was widening and wealth was growing more ostentatious, with more shops displaying more consumer goods, and more emphasis on personal parade. You reap what you sow, and the new capitalist society was creating crime alongside affluence and state power.

Policing and Punishment is a splendid achievement. The book, it’s true, betrays a tedious tendency to cross every ‘t’ and dot every ‘i’, and to insert redundant caveats, qualifications and apologies. Energetic editing was called for. But these are petty misdemeanours. Anyone interested in the history of crime, and anyone who talks about being tough on crime, would do well to read it, and to be reminded of the intractability of lawbreaking as the product of an unjust society.