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The Crime Wave: Recent Writing on Crime and Criminal Justice in Eighteenth-Century England

Published online by Cambridge University Press:  10 January 2014

Joanna Innes  and
John Styles
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Extract

One of the most exciting and influential areas of research in eighteenth-century history over the last fifteen years has been the study of crime and the criminal law. It is the purpose of this essay to map the subject for the interested nonspecialist: to ask why historians have chosen to study it, to explain how they have come to approach it in particular ways, to describe something of what they have found, to evaluate those findings, and to suggest fruitful directions for further research. Like all maps, the one presented here is selective. The essay begins with a general analysis of the ways in which the field has developed and changed in its short life. It then proceeds to consider in more detail four areas of study: criminality, the criminal trial, punishment, and criminal legislation. This selection makes no pretense of providing an exhaustive coverage. A number of important areas have been omitted: for example, public order and policing. However, the areas covered illustrate the range of approaches, problems, and possibilities that lie within the field. The essay concludes with a discussion of the broader implications of the subject.

The Development of the Field

Before the 1960s crime was not treated seriously by eighteenth-century historians. Accounts of crime and the criminal law rarely extended beyond a few brief remarks on lawlessness, the Bloody Code, and the state of the prisons, often culled from Fielding, Hogarth, and Howard. There were exceptions, but they fell outside the mainstream of eighteenth-century history. The multiple volumes of Leon Radzinowicz's monumental History of the English Criminal Law and Its Administration from 1750 began to appear in 1948, but Radzinowicz worked in the Cambridge Law Faculty and the Institute of Criminology, and, as Derek Beales has pointed out, his findings were not quickly assimilated by historians.

Type
Research Article
Information
Journal of British Studies , Volume 25 , Issue 4: Re-Viewing the Eighteenth Century , October 1986 , pp. 380 - 435
Copyright
Copyright © North American Conference of British Studies 1986

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References

1 Radzinowicz, L., A History of English Criminal Law and Its Administration from 1750, 5 vols. (London, 1948–1986)Google Scholar (vol. 5 with R. Hood); Beales, D., “Peel, Russell and Reform,” Historical Journal 17 (1974): 879CrossRefGoogle Scholar.

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3 Thompson, E. P., The Making of the English Working Class (London, 1963)Google Scholar, “The Moral Economy of the English Crowd in the Eighteenth Century,” Past and Present, no. 50 (1971), pp. 76–136Google Scholar, and Whigs and Hunters: The Origin of the Black Act (London, 1975)Google Scholar.

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6 Ignatieff, M., A Just Measure of Pain: The Penitentiary in the Industrial Revolution, 1750–1850 (London, 1978)CrossRefGoogle Scholar. But see also his autocritique in “State, Civil Society and Total Institutions: A Critique of Recent Social Histories of Punishment,” in Social Control and the State, ed. Cohen, S. and Scull, A. (Oxford, 1983). chap. 4Google Scholar.

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9 For example, Beattie, J. M., “Towards a Study of Crime in Eighteenth Century England: A Note on Indictments,” in The Triumph of Culture: Eighteenth Century Perspectives, ed. Fritz, P. and Williams, D. (Toronto, 1972), pp. 299–314Google Scholar.

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20 The literature on these subjects is enormous. The following represent recent interventions in the debates and provide wide-ranging bibliographies. For interpersonal violence, see Gurr, T. R., “Historical Trends in Violent Crimes: A Critical Review of the Evidence,” Crime and Justice: An Annual Review of Research, vol. 3, ed. Tonry, M. and Morris, N. (Chicago, 1983), pp. 295–353Google Scholar; Stone, L., “Interpersonal Violence in English Society,” Past and Present, no. 101 (1983), pp. 22–33Google Scholar; and Sharpe, J. A., “The History of Violence in England: Some Observations,” Past and Present, no. 108 (1985), pp. 206–15Google Scholar. For offenses against property, see Sharpe, J. A., Crime in Early Modern England, 1550–1750 (London, 1984), chap. 3Google Scholar; and Gatrell.

21 Hay, , “Crime, Authority and the Criminal Law,” pp. 53–54Google Scholar; Pole, p. 115.

22 Hay, “War, Dearth and Theft in the Eighteenth Century” (n. 7 above).

23 Beattie, , “The Pattern of Crime in England (n. 5 above), p. 95Google Scholar.

24 King, , “Crime, Law and Society in Essex,” p. 30Google Scholar.

25 Leeds Intelligencer (February 9, 1762).

26 Conway, S. R., “The Recruitment of Criminals into the British Army, 1775–1781,” Bulletin of the Institute of Historical Research 58 (1985): 46–58CrossRefGoogle Scholar, points out the many different channels through which offenders could find their way into the armed forces.

27 Hay, , “War, Dearth and Theft in the Eighteenth Century,” p. 125Google Scholar.

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29 Hobsbawm (n. 8 above), p. 5.

30 See, e.g., “Conference Report: Distinctions between Socio-political and Other Forms of Crime,” Bulletin of the Society for the Study of Labour History 25 (1972): 5–21Google Scholar; Hay et al., eds. (n. 4 above); Thompson, Whigs and Hunters (n. 3 above); Rule, J., “Social Crime in the Rural South in the Eighteenth and Early Nineteenth Centuries,” Southern History 1 (1979): 135–53Google Scholar; and Bushaway, B., By Rite: Custom, Ceremony and Community in England, 1700–1880 (London, 1982), chap. 6Google Scholar.

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32 Thompson, E. P., “Eighteenth Century English Society: Class Struggle without Class?” Social History 3 (1978): 154CrossRefGoogle Scholar.

33 For a sympathetic but telling critique of Thompson's work on the crowd, see Bohstedt, J., Riots and Community Politics in England and Wales, 1790–1810 (Cambridge, Mass., 1983)CrossRefGoogle Scholar.

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35 Munsche, P. B., Gentlemen and Poachers (Cambridge, 1981), chap. 3Google Scholar.

36 Styles, J., “Embezzlement, Industry and the Law in England, 1500–1800,” in Manufacture in Town and Country before the Factory, ed. Berg, M., Hudson, P., and Sonenscher, M. (Cambridge, 1983), chap. 7Google Scholar.

37 The influence of Macpherson's, C. B.The Political Theory of Possessive Individualism (Oxford, 1962)Google Scholar is crucial here.

38 For a critique of this mode of argument, see Skocpol, T., “Political Response to Capitalist Crisis: Neo-Marxist Theories of the State and the Case of the New Deal,” Politics and Society 10 (1980): 199–200CrossRefGoogle Scholar. See also the exchange between Jon Elster and others in “Special Issue: Marxism, Functionalism and Game Theory,” Theory and Society, vol. 11 (1983)Google Scholar.

39 Beattie, Crime and the Courts in England (n. 18 above), illustrates the benefits of using the indictments as a starting point in this way. See the discussion of his work in Sec. V below.

40 Styles, J., “‘Our Traitorous Money Makers’: The Yorkshire Coiners and the Law, 1760–83, ” in An Ungovernable People: The English and Their Law in the Seventeenth and Eighteenth Centuries, ed. Brewer, J. and Styles, J. (London, 1980)Google Scholar.

41 For a study by a historian of crime and disorder that adopts this approach, see Wells, R. A. E., “Sheep Rustling in Yorkshire in the Age of the Industrial and Agrarian Revolutions,” Northern History 20 (1984): 127–45CrossRefGoogle Scholar.

42 For a discussion by a modern criminologist of how such an analysis might be undertaken, see Cohen, A. K., “The Concept of Criminal Organisation,” British Journal of Criminology 17 (1977): 97–111CrossRefGoogle Scholar.

43 These and other eighteenth-century terms of social description require a great deal more investigation. Historians have made much play with the term “laboring poor,” but it is not clear that eighteenth-century usage warrants its by now almost standard employment as a supposedly nonanachronistic substitute for the modern term “working class.”

44 King, P. J. R., “Decision-Makers and Decision-making in the English Criminal Law, 1750–1800,” Historical Journal 27 (1984): 25–58CrossRefGoogle Scholar; Linebaugh, P., “Tyburn: A Study of Crime and the Labouring Poor in London during the First Half of the Eighteenth Century” (Ph.D. diss., University of Warwick, 1975)Google Scholar.

45 Hay, “Crime, Authority and the Criminal Law” (n. 17 above), chaps. 2, 3.

46 Hay, “Property, Authority and the Criminal Law” (n. 12 above).

47 Langbein, “Albion's Fatal Flaws” (n. 13 above); King, “Decision-Makers and Decision-making in the English Criminal Law.”

48 Green, T. A., Verdict according to Conscience: Perspectives on the English Criminal Trial Jury, 1200–1800 (Chicago, 1985)CrossRefGoogle Scholar.

49 King, , “Decision-Makers an d Decision-making in the English Criminal Law,” p. 26Google Scholar.

50 For two rather different perspectives on who controlled the workings of the criminal law, see Hay, , “Property, Authority and the Criminal Law,” and cf. pp. 38–39Google Scholar with pp. 60–61.

51 Brewer and Styles, eds. (n. 40 above), introduction, p. 20.

52 Hay, , “Property, Authority and the Criminal Law,” p. 46Google Scholar.

53 Ibid. p. 44.

54 Green, chap. 7, esp. n. 156.

55 Hay, , “War, Dearth and Theft in the Eighteenth Century” (n. 7 above), p. 154Google Scholar.

56 Beattie, Crime and the Courts in England (n. 18 above), chap. 8.

57 Green, chap. 7; Brewer, J., “The Wilkites and the Law, 1763–1774: A Study of Radical Notions of Governance,” in Brewer, and Styles, , eds., pp. 128–71Google Scholar.

58 For a characterization of this self-confirming aspect of Hay's argument as a peculiarly Marxist shortcoming, see Langbein, , “Albion's Fatal Flaws” (n. 13 above), pp. 114–15Google Scholar. Note that there is little evidence that Hay himself wishes the argument to be carried on at this “rarefied” level.

59 Langbein, J. H., “Shaping the Eighteenth Century Criminal Trial: A View from the Ryder Sources,” University of Chicago Law Review 50 (1983): 134CrossRefGoogle Scholar.

60 Langbein, J. H., “The Criminal Trial before the Lawyers,” University of Chicago Law Review 45 (1978): 263–316CrossRefGoogle Scholar, and “Shaping the Eighteenth Century Criminal Trial.”

61 Langbein, , “Shaping the Eighteenth Century Criminal Trial,” p. 133Google Scholar.

62 It is necessary to ask what improvements in policing could, under eighteenth-century conditions, have plausibly been made that would have achieved this goal. For a discussion of some of the possibilities and limitations of eighteenth-century police reform, see Styles, J., “Sir John Fielding and the Problem of Criminal Investigation in Eighteenth Century England,” Transactions of the Royal Historical Society, 5th ser., 33 (1983): 127–49CrossRefGoogle Scholar.

63 It may be, as Beattie, John, in Crime and the Courts in England (n. 18 above), p. 353Google Scholar, has tentatively suggested, that more extensive government involvement in criminal prosecutions wa s a stimulus to change.

64 Styles, , “‘Our Traitorous Money Makers’” (n. 40 above), p. 208 and n. 177Google Scholar.

65 For what is perhaps an overgenerous account of magisterial rectitude in these matters, see Munsche (n. 35 above), pp. 93–102. For high-court and parliamentary attempts to impose constraints on magistrates in the exercise of their summary powers, see Landau, N., The Justices of the Peace, 1679–1760 (Berkeley and Los Angeles, 1984), pp. 348–52Google Scholar.

66 Landau, pp. 343–59, tackles various aspects of this supervisory relation. Douglas Hay and Ruth Paley are currently working on a calendar of references to Staffordshire cases in King's Bench archives, which, when completed, will appear in the Staffordshire Record Series.

67 Michel Foucault's work—informed as it is by the notion that the prison is in some sense a representative modern institution—has undoubtedly played an especially important part in attracting social scientists to the history of prisons. See esp. Foucault, M., Surveillir et punir: Naissance de la prison (Paris, 1975)Google Scholar (translated into English by Sheridan, A. as Discipline and Punish [New York, 1978])Google Scholar; and also Ignatieffs comments in “State, Civil Society and Total Institutions” (n. 6 above).

68 Webb, S. and Webb, B., English Prisons under Local Government (London, 1922)Google Scholar; Radzinowicz (n. 1 above), vol. 1.

69 See, e.g., Langbein, , “Albion's Fatal Flaws” (n. 13 above), pp. 115–19Google Scholar; see also Sec. VI below.

70 Hay, “Property, Authority and the Criminal Law” (n. 12 above); Linebaugh, P., “The Tyburn Riot against the Surgeons,” in Hay, et al., eds.Google Scholar (n. 4 above), chap. 2.

71 Ekirch, R., Bound for America: Convict Transportation, Crime and Society in the Eighteenth Century (Oxford, in press)CrossRefGoogle Scholar. See also Ekirch, A. R., “The Transportation of Scottish Criminals to America during the Eighteenth Century,” Journal of British Studies 24, no. 3 (1984): 366–74CrossRefGoogle Scholar, and “Bound for America: A Profile of British Convicts Transported to the Colonies, 1718–75,” William and Mary Quarterly, 3d ser., vol. 42 (1985)Google Scholar.

72 Morgan, R., “Divine Philanthropy: John Howard Reconsidered,” History 62 (1977): 388–410CrossRefGoogle Scholar; Ignatieff, A Just Measure of Pain (n. 6 above); Evans, R., The Fabrication of Virtue: English Prison Architecture, 1750–1840 (Cambridge, 1982)Google Scholar.

73 But see Ignatieff's second thoughts in “State, Civil Society and Total Institutions.” Thomas Green's recent study of the criminal trial jury incidentally provides material for the reassessment of another set of “reform” proposals. Green suggests that the campaign for reform of the capital statutes should be seen not primarily as an attempt to change the conventional tariff of penalties but rather as an attempt to take the power to tailor a decision to fit their assessment of a particular case out of the hands of the jury. (Green [n. 48 above], chap. 7.) Green naturally focuses on the jury, but in fact the argument can be given a more general reference. It is clear that many reformers were concerned to reduce the discretionary powers of judges also.

74 But see DeLacy's, Margaret critical comments in DeLacy, M. E., “Grinding Men Good? Lancashire's Prisons at Mid-Century,” in Policing and Punishment in Nineteenth Century Britain, ed. Bailey, V. (London, 1981), chap. 8Google Scholar; and also some questioning of the established chronology in her “County Prison Administration in Lancashire, 1690–1850” (Ph.D. diss., Princeton University, 1980), esp. chaps. 1–4Google Scholar. (DeLacy, 's dissertation has been published as Prison Reform in England, 1700–1850 [Stanford, Calif., 1986].)Google ScholarIgnatieff, Michael, in “State, Civil Society and Total Institutions,” pp. 82–83Google Scholar, concedes in the face of DeLacy's criticisms that changes came more slowly and were implemented more unevenly than readers of his book may have been led to believe, but he remains strikingly uninterested in the possibility that traditional views of the basic shape of change may be more fundamentally flawed.

75 Michael Ignatieff deserves credit for taking up the question of who was sentenced to imprisonment and on what grounds and of the effect of changes in sentencing policy on penal administration in A Just Measure of Pain, esp. chaps. 2 and 4—if only in a rather impressionistic fashion.

76 We have previously expressed our own reservations about the usefulness of fluctuations in indictments as a guide to changes in the “real” incidence of crime. However, it is clear that contemporaries did often respond to them on the assumption that they offered such a guide.

77 Landau (n. 65 above), chap. 11 and passim, supports the Webbs' view that justices tended to become more active and conscientious as the eighteenth century progressed, a change she describes in terms of a changing vision of the ideal justice; for the Webbs' views, see Webb, S. and Webb, B., The Parish and the County (London, 1906), esp. pp. 350–73Google Scholar.

78 Macfarlane, S., “Social Policy and the Poor in the Later Seventeenth Century,” in London, 1500–1700: The Making of the Metropolis, ed. Beier, A. L. and Finlay, Roger (London, 1986), pp. 252–77Google Scholar; King, “Crime, Law and Society in Essex,” chap. 6; Shoemaker, R. B., “Crime, Courts and Community: The Prosecution of Misdemeanors in Middlesex County, 1663–1723” (Ph.D. diss., Stanford University, 1986), chap. 2Google Scholar; Innes, J. M., “English Houses of Correction and ‘Labour Discipline,’ cl600–1780: A Critical Examination” (paper precirculated at the conference on Law, Labour and Crime, University of Warwick, 1983)Google Scholar.

79 Justices' notebooks are the other indispensable source for the study of petty offenses. The virtue of house of correction calendars as a source lies, first, in their wider chronological and geographic coverage and, second, in the fact that they shed more light on the particulars of sentencing.

80 This section draws on our joint research in progress on eighteenth-century legislation in general and criminal legislation in particular. We should like to express our gratitude to Sheila Lambert for her generosity in sharing with us her notes on failed bills, 1660–1792. Responsibility for the conclusions we have drawn from this material is entirely ours.

81 Hay, , “Property, Authority and the Criminal Law” (n. 12 above), p. 18Google Scholar.

82 Radzinowicz (n. 1 above), vol. 1, chap. 1.

83 Thompson, Whigs and Hunters (n. 3 above); Hay, “Property, Authority and the Criminal Law.”

84 Hay, , “Property, Authority and the Criminal Law,” p. 21Google Scholar.

85 Thompson, , Whigs and Hunters, p. 207Google Scholar.

86 Hay, , “Property, Authority and the Criminal Law,” pp. 20–21Google Scholar.

87 Ibid., p. 20.

88 State Papers James I 1622, petition of worsted makers in Norfolk, Suffolk, and Essex, [1622–23], Public Record Office, State Papers 14/140/82.

89 Langbein, , “Albion's Fatal Flaws” (n. 13 above), p. 118Google Scholar.

90 1 Edw. 6, c. 12; 2/3 Edw. 6, c. 33; 8 Eliz. 1, c. 4.

91 One of the most important exceptions was 15 Geo. 2, c. 34 (1741), which made sheep stealing a capital offense. But capital statutes of this kind, dealing in one statute with an offense that was very common, formed a much smaller proportion of capital statutes in the eighteenth century than they had in the sixteenth century.

92 8 Geo. 2, c. 6; 12 Geo. 1, c. 36; 9 Geo. 2, c. 29; 15 Geo. 2, c. 13; 24 Geo. 2, c. 11.

93 Cruikshanks, E. and Erskine-Hill, H., “The Waltham Black Act and Jacobitism,” Journal of British Studies 24, no. 3 (1985): 358–65CrossRefGoogle Scholar; Styles, J., “Criminal Records,” Historical Journal 20 (1977): 977–81CrossRefGoogle Scholar. Thompson, (Whigs and Hunters [n. 3 above], p. 196Google Scholar) concedes that the act was passed “under colour of emergency” but insists that its promoters did not seriously regard it as a mere emergency measure (e.g., p. 208). On this aspect of Thompson's argument, see esp. Styles, , “Criminal Records,” p. 979Google Scholar.

94 8 Geo. 2, c. 20; 10 Geo. 2, c. 32.

95 It is extremely difficult to establish precisely the kind of punishment intended in the case of failed bills since, even when the text of a draft bill survives, the specific punishments proposed were, as a matter of form, always left blank.

96 For example, the bill for “better preventing the malicious burning and destroying houses, buildings, fences, corn, hay, grass and other improvements,” introduced in 1698–99 (Journals of the House of Commons [CJ], 1697–99, vol. 12).

97 For example, the succession of bills “for the more effectual preventing, and punishing, the stealing, or unlawful killing of cattle,” introduced in the sessions of 1714—15, 1715–16, and 1717–18 (CJ, 1714–18, vol. 18).

98 For example, 25 Geo. 2, c. 10, an act for the more effectual securing of mines of black lead from theft and robbery.

99 For example, 22 Geo. 2, c. 27, an act for the more effectual preventing of frauds and abuses committed by persons employed in various manufactures.

100 Horatio Walpole to the earl of Hardwicke, March 25, 1749, British Library, Additional MS 35590, fols. 267–68.

101 William Hay, diary, March 13, 1733/4, Northamptonshire Record Office, L(C) 1732.

102 CJ, 1714–18, 18:768, March 18, 1717/8.

103 Sir John Lowther to John Spedding, February 11, 1752, Cumbria Record Office (Carlisle), Lowther MS D/Lons/W/58.

104 Hay et al. eds. (n. 4 above), preface, p. 13.

105 For an impassioned, if rather overwrought, presentation of the ideological importance of religion in eighteenth-century England, see Clark, J. C. D., English Society, 1688–1832 (Cambridge, 1985), esp. pp. 87–90Google Scholar.

106 Macpherson (n. 37 above). For more recent work that challenges Macpherson's account, see Ryan, A., Property and Political Theory (Oxford, 1984), chap. 1Google Scholar; Tuck, R., Natural Rights Theories (Cambridge, 1979), esp. pp. 2–3CrossRefGoogle Scholar; and Tully, J., A Discourse on Property (Cambridge, 1980), esp. p. 172CrossRefGoogle Scholar.

107 Thompson, E. P., “Patrician Society, Plebeian Culture,” Journal of Social History 7 (1974): 403CrossRefGoogle Scholar. A more nuanced analysis is Thompson, 's “Eighteenth Century English Society” (n. 32 above), esp. p. 162Google Scholar. For a critique of Thompson's views, see Anderson, P. , Arguments within English Marxism (London, 1980), pp. 87–94Google Scholar.

108 Hay, , “Property, Authority and the Criminal Law” (n. 12 above), p. 18Google Scholar.

109 Brewer and Styles, eds. (n. 40 above), introduction, p. 20. It appears that even the laboring poor were able to share, to a greater extent than Brewer and Styles suggested, in this “multiple-use right.”