Literature and Crime in Augustan England

Ian A. Bell

• Publisher: Routledge
• Year: 2020
• eBook ISBN: 9781000031096
• Edition: 1
• Topic: Literature
• Subtopic: Literary Criticism
• Index: Literature

Eighteenth-century England saw an explosion of writings about deviance. In literature, in the law, and in the press, writers returned again and again to the question of crime and criminals.

While the extension of the legal system formalised the power of the state to categorise and punish 'deviance', writers repeatedly confronted the problematic nature of legal authority and the unstable idea of 'the criminal'. Some of this commentary was supportive, some was subversive and resistant, uncovering the complexity of issues the law sought to ignore.

Originally published in 1991, Ian Bell's masterly investigation of the diverse representations of crime and legality in the Augustan period ranges widely across the contemporary press, involving court reports, philosophical writings, periodicals, biographies, pornography and polemics. Re-assessing the canonical texts of eighteenth-century 'Literature', Bell situates the work of Defoe, Hogarth, Gay, Swift, Pope, Richardson and Fielding in its social and political context.

1 Literature/crime/society

TALKING ABOUT THE LAW

In 1758, Sir William Blackstone delivered for the first time the series of lectures later published as his Commentaries on the Laws of England. Speaking at the University of Oxford, he was addressing an audience drawn exclusively from the privileged and propertied male elite of his society. For their benefit and instruction, Blackstone presented a systematic and easily comprehensible unfolding of the benign principles which, he argued, upheld the whole elaborate fabric of the English legislature. His stated aims could not be simpler, or more obviously partisan – ‘I think it is an undeniable position, that a competent knowledge of that society, in which we live, is the proper accomplishment of every gentleman and scholar; an highly useful, I had almost said essential part of liberal and polite education.’¹ With a tone of sustained complacency, Blackstone sought to demonstrate the manifest and manifold felicities of his native constitution. Although it might appear bafflingly complex and incomprehensible to the uninitiated, the body of statute was in fact covertly unified by its concern for the liberty of the propertied oligarchy. Without apology or embarrassment, Blackstone proudly and rhetorically underlined the ways in which the law entitled his listeners to lead lives of unimpeded security and comfort:

these rights consist, primarily in the free enjoyment of personal security, of personal liberty, and of private property … And all of these rights and liberties it is our birthright to enjoy entire; unless where the laws of our country have laid them under necessary restraints. Restraints in themselves so gentle and moderate, as will appear upon farther enquiry, that no man of sense or probity would wish to see them slackened.

(i, 140)

This robustly conservative version of the body of law (‘our birthright … our country’), which so outraged Bentham and the later reformers, combines a reverence for the law with a class-based ideology of Englishness. The overall impression that the speaker was trying to convey is that the landed or propertied Englishman may live more or less unrestrained in a world organised for his benefit. Of course, to advance such an argument, however intelligently or fastidiously, Blackstone had to maintain a discreet silence on the subject of those less generously treated by the laws – the poor, slaves, women, children – and there could be no place whatsoever in his rhetoric for thoughts of agitation or dissent.

Reading his words now, we can hear the voice of mid-eighteenth-century privileged confidence at its most assured and triumphant. Blackstone seems remarkably untroubled by anxiety or apprehension, and encourages his prosperous listeners to have faith in the law, which is designed to support and maintain their cultural dominance. In doing so, he demonstrates the ideological centrality of legislation and enforceable contracts in bourgeois society, which he saw as necessary and wholly desirable. The authoritative chapter and verse which could regulate conduct and arbitrate in the disputes of his audience were not to be found in Holy Scripture, as they might still have been for less comfortable Augustans, but in the statute book.

This was by no means an eccentric or idiosyncratic position. As Adam Smith recognised in The Wealth of Nations (1776), an unquestioning belief in the reliability and justice of the laws of contract had been (and still was) the ideological cement which held post-agrarian society together:

Commerce and manufactures can seldom flourish long in any state which does not enjoy a regular administration of justice, in which the people do not feel themselves secure in the possession of property, in which the faith of contracts is not supported by law, and in which the authority of the state is not supposed to be regularly employed in enforcing the payment of debts from all those who are able to pay. Commerce and manufactures, in short, can seldom flourish in any state in which there is not a certain degree of confidence in the justice of the government.²

Smith is here talking about the ways in which the maintenance of the law permits and supports the activities of a mercantile culture, but his language shows a very interesting reliance on ideology rather than on reality. The members of this commercial civilisation must have ‘faith’ and ‘a certain degree of confidence’ in things. That is to say, they have to believe in the efficacy of the law for their society to function. Whether or not that confidence was entirely justified is a separate, perhaps unnecessary, question, for the belief was sufficiently instrumental to make the law work.

Blackstone’s Commentaries can be seen as part of the ideological machinery by which this system of belief and confidence is created. His exposition is an elegant, seemingly effortless attempt to bolster belief, to disseminate confidence, to reassure his audience that the laws of England had their best interests at heart. He was demonstrating to them their right to conduct business unhindered, and at the same time instructing them in their future duties as administrators, magistrates and even members of parliament. Furthermore, he was offering the promise that, while the laws of conveyancing, for example, might justly regulate the transaction of property, they would in no way address the fundamental inequities in the prevailing distribution of that property. As well as holding symbolic and ideological importance, the civil law might, on acquaintance, serve certain useful practical purposes in the day-to-day life and business of his listeners – ‘the understanding of a few leading principles, relating to estates and conveyancing, may form some check and guard upon a gentleman’s inferior agents, and preserve him at least from very gross and notorious imposition’ (i, 7).

Some knowledge of the civil law, and attendant confidence in its authority, is thus made to seem like a useful part of a gentleman’s social equipment. The statutes could be relied upon to articulate bourgeois hegemony, and to reify the values of the landed classes, and keep ‘inferior agents’ on their guard. And that, for Blackstone (and his listeners) was the way things should be. However, it is most interesting to notice that even Blackstone becomes much more hesitant in his treatment of contemporary criminal law. Far from demonstrating the felicities of the English constitution, and enabling a gentleman to conduct his business smoothly and legitimately, the criminal statutes seemed to Blackstone to be rather rough and ready:

The criminal law is in every country of Europe more rude and imperfect than the civil … Even with us in England, where our crown-law is with justice supposed to be more nearly advanced to perfection; where crimes are more accurately defined, and penalties less uncertain and arbitrary; where all our accusations are public, and our trials in the face of the world; where torture is unknown, and every delinquent is judged by such of his equals, against whom he can form no exception nor even a personal dislike; – even here we shall occasionally find room to remark some particulars, that seem to want revision and amendment.

(iv, 3)

Blackstone here includes all the features which were regularly cited by patriotic commentators to demonstrate the superiority of English criminal legislation over its continental counterparts – the virtual absence of torture and the alleged impartiality of jurors being two of the most potent and regularly flaunted items. However, after this flag-waving defence of English legislation, Blackstone is required to pause and acknowledge the visible imperfections in the criminal law, and question the necessity for the savage restraints it could impose.

Whereas the earlier, more relaxed and informal system of judge-made law seemed to Blackstone to be well-nigh perfect, the newly developed criminal statute, created by a distant and occasionally ill-informed or partisan Parliament, gave him cause for concern. Blackstone’s preferred system was one where magistrates would be local men, well-informed of the particular circumstances of cases, and sufficiently acquainted with the niceties of the law through works like Richard Burn’s The Justice of the Peace and Parish Officer, Giles Jacob’s The Statute-Law Common-plac’d, John Mallory’s The Attorney’s Pocket Companion, Michael Dalton’s The Country Justice, Theodore Barlow’s The Justice of the Peace, or any of the other digests available in the mid-century. By this method, a magistrate could make appropriate judgements, in keeping with the broad principles set down by Coke, Hale, Stamford and Hawkins, yet responsive to local requirements, and without excessive or pedantic legalistic quibbling.

But as Blackstone saw it, the sensitive and flexible methods so established were being swept away by the growth of rather clumsier centralised legislation. When introducing a discussion of the ‘Bloody Code’, as it came to be known, his earlier urbanity and confidence begin to disappear. He has to recognise that English criminal law could and did perpetrate grotesque outrages – he mentions that the death sentence could be passed on someone found ‘to break down (however maliciously) the mound of a fishpond, whereby any fish shall escape; or cut down a cherry tree in an orchard’ (iv, 3) – but he tries to play these down by attributing such severity to a minor bureaucratic inefficiency in supervising and articulating the law.³ His solution, of course, is to seek for intelligent procedures of ‘revision and amendment’ rather than to demand any more radical or challenging reforms.

Blackstone’s unease here is most interesting. It looks as though he is having to confront a discourse which violates those ideals of gentlemanly conduct which the civil law enshrined and which the tone of his lectures tried to reproduce. Whereas the civil code seemed to weave a fabric of cultured civilisation, the criminal codes could look like the flagrant exercise of power and violence to secure rights and property for a few. Of course, that was not the only function of the criminal law, nor the one that was most widely recognised. The ideological significance of the law was that it managed for much of the time to create the illusion of impartiality and fairness, and it was seen by many as an acceptable tribunal for arbitrating disputes. In most of its operations, the law was not a direct and unmediated articulation of power, but an ideological transfiguration of class values, shrouded in ritual, mystery and ceremony, continually protesting its disinterest. And, as J. M. Beattie puts it, ‘to be seen to be serving the interests of the broader community in a fair manner it had indeed to be doing so’.⁴ Perhaps it often was doing so, discouraging violence and fraudulent practice by the most drastic of means, and even, now and then, defending the weak against the strong. But yet to the modern commentator there seem to be far too many occasions when the mask of impartiality slipped, and the criminal law seemed to be acting aggressively ‘to sustain and legitimize the established social and economic and political arrangements of the society’.⁵

The traditional view of eighteenth-century English criminal legislation is that it represents a kind of Dark Age, lying in wait for the battalion of enlightened reformers like Cesare Beccaria, Jeremy Bentham, John Howard, Sir Samuel Romilly, William Eden, Sir Thomas Fowell Buxton, Sir James Mackintosh and Elizabeth Fry – names almost as well known to the general reader as the names of famous criminals. As Sir Leon Radzinowicz, at his most apologetic and progressivist, famously put it, ‘Lord Macaulay’s generalisation that the history of England is the history of progress is as true of the criminal law of this country as of the other social institutions of which it is a part.’⁶ Such Whiggish confidence in the perfectibility of law has not been borne out by the various more recent studies of the period. Whereas Radzinowicz seems assured that ‘the criminal law of England has always been sensitive to the needs and aspirations of the English people’,⁷ more recent commentators have seen the evolution of the criminal code as reflecting the needs and aspirations more exclusively of certain groups and classes (like those which made up Blackstone’s audience) than of some happily amorphous mass called ‘the English people’. Although there are very significant differences of emphasis among the most recent commentaries, to which we shall return, they share the perception that throughout the Augustan period many traditional and previously acceptable practices were being criminalised by the introduction of new laws, and that the very rapid growth in statutes (especially in capital statutes) at the time is indicative of ‘the aggrandizement of the property rights of the gentry at the expense of common right and customs’.⁸ Although the law represented class interests in a mediated and disguised form, shrouded in the majesty of ceremony and the performance of ritual, those class interests were still its central generative force.

It is important to recognise that this version of the ideological function of criminal legislation had a place in the widespread discussion of the law in the eighteenth century itself. There was, as we might expect, intense and sustained discussion of the legal system, even if most of it looked primarily at the practicalities rather than the politics of law. The feature which attracted most attention was that the criminal code in England, while in some respects less atavistic than others to be found in Europe, still relied on a mixture of ceremony and savagery in the form of ritualised executions, transportation, and various violent corporal punishments. Throughout the century, more and more offences, including apparently trivial ones, could be punished by death, although a certain amount of discretion could be exercised in sentencing. The most notorious piece of legislation was the ‘Waltham Black Act’ (9 Geo. I c.22), which introduced around fifty new capital offences virtually overnight, including the fish-mound example raised by Blackstone. This act has been seen as ‘the onset of the flood-tide of eighteenth-century retributive justice’ and it served as a focus for discussions of the status of the legal system.⁹ For Blackstone, even the discretion which could be employed in the courts did not prevent this act from seeming excessive – ‘it is true, that these outrageous penalties, being seldom or never inflicted, are hardly known to be law by the public: but that rather aggravates the mischief, by laying a snare for the unwary’ (iv, 4). So although Blackstone is scrupulous in not pointing the finger at anyone for this cruelty, he cannot remain unaware of the potential savagery of at least part of the English constitution.

The problem that the Black Act dramatised and intensified could be seen as a tension within the discourse of law itself. In trying to regularise and legitimise the whole procedure, Blackstone inevitably ran up against the problems of the apparent injustices perpetrated by the legal system itself. He could not help but see that a system for preserving life and property which depended on the sanctions of destroying life and confiscating property was morally complex and might not always be capable of a benign interpretation. Blackstone acknowledged these problems but did not investigate them thoroughly. Other commentators, of a more aggressively ironic temper, could see the paradoxes much more clearly. David Hume, for example, in his Treatise...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Original Title Page
• Original Copyright Page
• Dedication
• Epigraph
• Contents
• Acknowledgements
• Introduction: Buttock and Twang
• 1 Literature/crime/society
• 2 Representing the criminal
• 3 The harlot’s progress
• 4 Satire’s rough music
• 5 Fielding and the discipline of fiction
• 6 Postscript: Buttock and File
• Notes
• Index