The Long Eighteenth Century

by Frank O'Gorman

  The existence of such bodies reveals that in the towns the corporations were in serious need of reform. Indeed, the absence of any sort of rational governing structures for the rapidly growing industrial centres like Leeds, Manchester and Sheffield was striking. The haphazard collection of magistrates sitting in quarter sessions, medieval officials sitting in Courts Leet and parish officials vainly striving to keep the peace and look after the poor was almost a standing invitation to disorder. Even in the counties the need for reform was being felt. There was a serious shortage of magistrates, a shortage that was worsening as the demands made upon the magistracy increased in size and complexity. By the end of the eighteenth century it was proving increasingly difficult to find enough gentlemen willing to sit as magistrates. In 1792 Parliament passed an act empowering the appointment of stipendiary (i.e. paid, professional) magistrates. The passing of this act does not only imply that the older system of administering justice was becoming harder to sustain. It also suggests that the old ideal of a local, amateur, unpaid gentleman-landowner who was the natural leader of the community was beginning to pass away. An official return in 1831 stated that there were 4,500 magistrates qualified to act in the English counties, many of whom had sat on the bench only infrequently.12 In the north of England, in particular, there was a serious shortage of magistrates. One of the reasons for this was a noticeable reluctance to appoint magistrates from the industrial and mercantile middle classes. Increasingly, it was left to the Anglican clergy to act as JPs. After 1815 no less than a quarter of all magistrates in England and Wales were clergymen, a fact which reinforced radical criticisms that the church was little more than a prop for the state.

  Together with religion, law was one of the principal anchors of society during the long eighteenth century. Politics was dominated by conflicts over and discussions of the law, and many parliamentary debates were conducted with legal precedents principally in mind. Social conflicts were mediated by the law, whether landlord quarrelled with tenant, master with man or rioter with wholesaler. Public order rested on legal foundations. The reading of the Riot Act and the summoning of the militia were themselves legal acts, enacted with precision and ceremony. Last, and certainly not least, property of all types rested on a legal basis.

  Until the 1970s most academic work on the history of crime fitted obligingly into the Whig Interpretation of the eighteenth century. Until the emergence of a professional police force and a reformed prison system, chaos, cruelty and corruption reigned. Modern research, however, has steadily chipped away at this view and has shown that the eighteenth-century system of justice was not as brutal and disorderly as had been assumed and, in many respects, can be seen to anticipate nineteenth-century developments, such as improved prison conditions, a professional police force and more humane sentencing. Furthermore, the legal system did have much to commend it. Torture was not used, legal proceedings were public, trial by jury was common and habeas corpus acted as a safeguard for personal liberties. On top of everything, the judges were not subject to political intimidation. Of course, it cannot be denied that one of the consequences of the Glorious Revolution was that it made the world safe for property but it is misleading to argue that only the property of the higher orders of society were thus protected. Indeed, the Glorious Revolution had been the achievement of men with very considerable amounts of property. Moreover, in the British state during the long eighteenth century full citizenship was conveyed by the possession of property. At least two of the outcomes of the Glorious Revolution – the independence of the judiciary from royal control and the regular meeting of Parliament – were intended, in part at least, to act as continuing protections for the rights of property owners. No wonder that upper-class commentators vied with each other in their admiration of the superiority of English law and the excellence of the British constitution not only because it protected their own interests but also because it protected the property of everyone in the land, however humble. According to Blackstone, the law guaranteed ‘those equitable rules of action, by which the meanest individual is protected from the insults and oppression of the greatest’.13 Although there was considerable sympathy for those who defied the law – like highwaymen and smugglers – most Britons believed that the law was the ultimate guarantor of the order and stability of their society, a belief carefully cultivated by the propertied classes. The only alternative to the rule of law was the awful prospect of a return to the anarchy of the mid-seventeenth century.

  This fear of anarchy was the prime motivation for what most historians have identified as the most striking feature of eighteenth-century legal life: the rapidly increasing number of statutes that carried the death penalty for minor offences. The governing classes of Hanoverian Britain had to cope with the problems of unprecedented social and economic change, poverty, vagrancy and violence which, they were convinced, were not only rapidly increasing but also threatening to endanger their lives and their property. With no standing army and no national police force at their disposal, they were driven to use the law to protect themselves. In 1688 there had been about 50 crimes for which the death penalty could be invoked; by 1800 the number had increased to 200. The Black Act of 1723 alone created 50 such offences. Some of them were of a singular character. In 1698 the theft of goods worth 25d. or more was made a capital offence. These statutes remained on the statute book until the early nineteenth century. Most of them passed in empty Houses and with little debate, and even less opposition. The first repeal of a capital statute did not come until 1808, and most of them remained in force until the 1820s.14

  What is to be concluded from this avalanche of statutes? Although historians usually assume that they were the legal expression of a hardening, authoritarian attitude on the part of the ruling classes, we should examine not only the statutes that were passed but also the way in which they were enforced. Most of them were extremely specific and referred to one place or offence. Separate acts legislated against damaging Fulham Bridge (1725), and Westminster Bridge (1736), and even forging an entry in a North Riding of Yorkshire Land Register (1735). Clearly, such legislation was passed because particular institutions and groups decided to avail themselves of the greater opportunities for legislation that the annual sittings of Parliament offered to them. Although much is made of the fact that the statutes protected new forms of property, in fact it was only for certain types of very traditional offences that people were actually executed – for forgery, sheep-stealing and theft from shops and warehouses. Although many other capital offences existed in the eighteenth century, there were in fact fewer executions than there had been in the seventeenth. In this way, it can be argued, the terrifying penalties that existed were there simply to deter and to impress the masses. They were rarely enforced.

  Nevertheless, many people were executed for crimes against property. By the end of the century, over 100 people each year were being executed in England and Wales alone, a figure that was increasing. The number sentenced to death was far higher. Between 1770 and 1830 no fewer than 7,000 men, women and children were executed out of 35,000 sentenced. The authorities were reluctant to execute people indiscriminately. However, such summary figures need careful analysis. They varied wildly from year to year and from place to place. In London and Middlesex in 1759, for example, six people were executed, while in 1785 there were as many as 97 executions. Only a small proportion of those hanged had committed murder; in London and Middlesex only one-tenth of those executed between 1749 and 1771 had done so. (Of the ninety-seven hung in 1785 only one was a murderer. Of the rest, forty-three had been convicted of burglary and thirty-one of highway robbery.) In London at the end of the century only one in three people sentenced to death was actually hanged. Overall, the number of those condemned to die who were pardoned increased from around 50–60 per cent in the early to middle part of the eighteenth century to around 90 per cent in the early nineteenth.15 What explains this growing reluctance actually to enforce the capital legislation so recentl
y enacted?

  The explanation may be sought in the need which the governing establishment felt to use the law and the legal system to reinforce their authority. Lacking physical, coercive powers they stood behind the terrifying majesty of the law, ostentatiously using the prerogatives of mercy and moderation in order to humanize their power. The authorities did not need to hang every criminal guilty of a capital offence. They needed to be seen to have the power to do so and the power, where appropriate, to pardon. After all, the purpose of the legislation was to deter acts of violence, to make examples of individuals, not to inflict as much cruelty as possible upon unfortunate men and women. By the end of the century, indeed, many educated people had reached the conclusion that the lurid spectacle of public execution might be less effective in deterring crime than other methods of punishment. The major alternative to public execution for most of the century had been transportation. In the half-century following the passage of the Transportation Act of 1718 some 50,000 convicts suffered transportation from Britain to the American colonies alone. The loss of the colonies led to the popularization of an established yet relatively little-used method of punishment, imprisonment. As late as 1776, according to John Howard’s survey, only 653 persons were imprisoned in gaols and of those, almost 60 per cent were debtors. Thereafter, lengthy periods of imprisonment found their place in the range of punishments available to judges. By the 1780s imprisonment, sometimes accompanied by hard labour, was coming to seem a more rational and reasonable punishment for crimes against property. By then, for example, slightly over 50 per cent of men convicted on non-capital offences in Surrey had received terms of imprisonment, in about one-quarter of cases accompanied by whipping.16 Finally, one thing was never in doubt: the idea that it was the responsibility of the state to deal with criminals and thus to uphold, and to be seen to be upholding, the law. The Gaols Act of 1823 embodied the principle not only of imposing discipline in prisons up and down the country but also of standardizing that discipline.

  To what extent, then, was the law an instrument of class rule, an agency of social control? In the sixteenth and seventeenth centuries the law had been an arena of severe conflict which had divided communities and the state. In the eighteenth century, however, according to Douglas Hay, the governing elite used the law to maintain its own power in at least three ways.17 First, the authority of the elite was expressed through symbolic behaviour and performances, through the terrifying rituals of public execution, through the pomp and swagger of quarter sessions, through the more informal courtesies of the JP’s study and, not least, the (to the majority) almost unintelligible niceties of courtroom formality. Second, the authority of the elite was expressed through the capacity of the legal system to treat people with clemency and with mercy. It was the unusually potent ritual of the pardon of a poor offender which demonstrated the terrifying majesty and power of the law at the same time as its incorruptibility and its humanity. The prospect of harsh punishments might be softened at the moment of sentencing by the clemency of merciful judges. Transportation or some other alternative to execution might thus be publicly seen to be fair and adequate punishment. Finally, according to Hay, the law could be and was used as an ideology of control. Through the recycling of justifications for the law, most Englishmen, even reformers and radicals, came to believe that all were equal before the law and that no man or woman was exempt from its penalties. Such sentiments were universal in Hanoverian Britain. The function of the ideology of the law, then, was to render the entire social and economic system acceptable to the mass of the people, to endow it with qualities with which they could identify and of which they might even be proud.

  On the other hand, this sort of approach, with its simplistic dualism of ‘governors’ and ‘governed’ and, what is implied, ‘elite’ and ‘popular’, has important limitations. The thesis that the law was an agency of social control rests on a partial misunderstanding of the new capital legislation of the eighteenth century. It is not always clear that it was actually enacted for purposes of social control. The Black Acts have been viewed as a government measure enacted to overawe the masses, but it can also be maintained that they were a response to the Jacobitism of the early 1720s, not a response to fears for the security of property.18 Furthermore, most of the historians who argue this case do so with very specific types of crime in mind. It is, however, surely misleading to concentrate exclusively upon criminal activities which have connotations of social division. Poaching, rioting and smuggling embrace elements of social tension, but to view them as evidence of a class war in the villages and the towns of Hanoverian Britain is to do violence to the subtlety and complexity of crime and its meanings. Smuggling in fact was a big commercial business, rather than a defiant act by small men against repressive superiors. Poaching, too, could be an organized affair rather than the reaction of a poor man trying to pot his family’s Sunday dinner. Many landowners took organized poaching extremely seriously, and even grouped themselves into joint prosecution societies both to suppress it and to prosecute offenders. Most litigation, indeed, was instigated not by the government nor by the governing classes against their social inferiors but by private individuals against people of roughly the same social standing. A very large number of those bringing cases to court were men with small amounts of property. Most prosecutions were brought privately by individuals, anxious to use the law in their own interests and service at a time when little attempt was made (by the courts) to detect crime. Thus the law was used overwhelmingly by the broad middling orders of society against each other, rather than being used by the propertied elite against the rest. Indeed, at the Essex quarter sessions between 1760 and 1800 over 20 per cent of prosecutions for felony were brought by labouring men, and the lesser middling orders like tradesmen and artisans contributed 30–40 per cent more. In Essex, at least, more than half the cases of felony were brought by quite humble people.

  And yet, if the administration of the law during these decades was not as savage as once believed, it was not without blemish. There were poor judges aplenty, embarrassingly hurried trials, prejudiced and doubtful convictions, an untrained police often hungry for reward and angry crowds, convinced that someone had been the victim of inappropriate or even illegal decisions. Indeed, we should not accept the assumption that people were passive recipients of legal and ideological control from above. People knew the law and they were determined to secure their own rights. In all this there was a traditional, customary awareness of what ‘law and order’ might mean. Law was not a fixed and static commodity. What was legal and what was not legal was not always clear and unquestioned. What was legal often needed to be defined, even to be fought over. There was no blind and fearful acceptance of the law of the elite. At the same time, trial by jury meant that verdicts in many cases were delivered not by the elite but by men of the middling orders. By the end of the eighteenth century the modern notion that the accused is innocent until proven guilty had made its appearance. Consequently, a broad constituency was involved in the administration and execution of the law, and public opinion was a force that could not be discounted. The rhetoric of the law could be taken very seriously by the poorer classes. The crowds in the streets of London that awaited the verdict on Thomas Hardy and his colleagues in the LCS in 1794 shows how legal processes could become an object of public concern. Law was not something handed down from above and passively and obediently received. In a rough and ready way, it belonged to everybody.

  There is a variation in the thesis of the law as an extension of state power. This is the theory of the law as a protection for the emergence of capitalism. According to this theory19 many customary practices, such as access to common land, rights of wood-gathering and the killing of game, became criminal offences as enclosures proceeded and land became the object of capitalist exploitation. Furthermore, the case law built up by Lord Mansfield at the Court of King’s Bench between 1756 and 1788 is regarded as a landmark in the history of commercial practice, and amo
unted to a substantial revision of commercial law. Moreover, during the eighteenth century capital punishment was extended to newer forms of commercial property, such as the protection of turnpikes (1735) or of coal mines (1737). In this vein, too, laws were passed against embezzlement and forgery and, in 1740, against the pilfering of materials entrusted to a worker. Yet it is not easy to detect direct relationships between the law, its enforcement and new forms of capitalist property and practice. Crime was much more complex than an undifferentiated protest against alleged loss of customary rights. Most of those charged with property offences were charged with offences against statutes which actually pre-dated the eighteenth century. Few were charged with offences against new codes of economic practice. Lord Mansfield’s verdicts on a host of commercial matters including contract, credit and debts were, however, highly technical and would have had little direct effect upon everyday routines of economic activity. Indeed, a leading authority has recently come round to criticizing the eighteenth-century legal system because it did not adequately facilitate the development of capitalism.

  Parliament’s failure to sweep away a penumbra of obsolete statutes and to push the courts towards an assertion of free market principles maintained a climate of uncertainty surrounding businessmen and traders and gave a semblance of legality to the actions of disorderly crowds and combinations of workers seeking to use collective forms of organization, intimidation and violence, to change prices and wages in their favour.20

  Apparently the law did not adequately cater for cases of breach of contract nor for the speedy settlement of debtors’ claims and disputes. There are, furthermore, many instances in which magistrates and judges defended customary practices such as wood-collecting and gleaning. Here, as elsewhere, the law was available to the poor petitioner as well as to the landed and propertied gentlemen.