The Rebirth of Private Policing

Les Johnston

• Publisher: Routledge
• Year: 2005
• eBook ISBN: 9781134941254
• Topic: Social Sciences
• Subtopic: Sociology
• Index: Social Sciences

these are just two of the issues addressed by Les Johnston, who argues that policing, far from being the exclusive preserve of public personnel, is an activity undertaken by a mixture of public, private, and quasi-public agents. His book reviews the history of private policing, examines developments of current concern, and finally considers the implications of these developments both for the sociology of policing and for a more general understanding of public-private relations in the late 20th century.

Part I
Historical and political background

Chapter 1
Private policing
Before and after the ‘new police’

In recent years there has been an avalanche of literature devoted to the analysis of historical patterns of social control in capitalist societies, much of it claiming to identify certain ‘master tendencies’ arising during the last three hundred years. In a valuable analysis of this literature, Cohen (1985) itemizes some of these ‘master tendencies’: notably, the movement from arbitrary and decentralized control (eighteenth century); to rational and state-centred control (nineteenth century); and, finally, to hybrid forms of statist decentralization in the current period. Yet, having himself been a leading figure in the field for more than 20 years, Cohen is increasingly cautious about the identification of distinct ‘master tendencies’ in the process of social control, arguing in his later work for greater recognition of the fragmented nature of the phenomenon (Cohen 1989).

I shall return to the issue of historical patterns of social control in more detail in the final chapter. For the moment, however, the question of whether the process is best seen as consisting of unitary stages, or of more diffuse and fragmented patterns, provides a useful backcloth to the present chapter. For although this chapter is directed to the history of policing, it addresses that topic in a somewhat unconventional way. Historians of policing have, in the main, been preoccupied with analysing the emergence and impact of public police forces during the nineteenth century. My concern, however, is to locate that emergence and impact alongside a history of private modes of policing which have persisted, in a variety of forms, into the twentieth century: forms which, as I indicate in later chapters, show every indication of further expansion in the present period.

CONCEPTS OF ‘POLICE’ AND ‘POLICING’

To begin with, however, it is necessary to consider the concepts of ‘police’ and ‘policing’, the former being a relatively modern concept, the latter an old one (Steedman 1984:8). Prior to the eighteenth century, if the word ‘police’ was used, reference was, in effect, being made to the broad social function of ‘policing’: ‘the general regulation or government, the morals or economy of a city or country’ (Palmer 1988:69; cf. Ascoli 1979:7 for citation of Dr Johnson’s definition). Here, the word is derived from the Greek polis (the root base of ‘polity’, ‘politics’, ‘policy’). ‘Policing’ thus referred to a socio-political function (rather than merely a formal legal one) exercised in civil society (rather than merely within the confines of the state). It was only in the mid-eighteenth century that the word ‘police’ began to be used, in its continental sense, to refer to the specific functions of crime prevention and order maintenance. From then, it was but a short step to defining ‘police’ in terms of a specific personnel. In England the word was first used in this sense by John Fielding in a pamphlet of 1758, though its first statutory use was in relation to the Thames River Police in 1800. After the formation of the ‘new police’ in 1829, of course, the equation of ‘police’ with ‘personnel’ was taken for granted.

The problem is that over time the concepts of ‘police’ and ‘policing’ have been conflated, historians and sociologists assuming that the two mean the same thing. This is the point behind Steedman’s observation that historical analysis has tried to apply modern definitions of the police to past practices, with disastrous effects. Take the case of the ‘Metropolitan version’ of police history (the view that 1829 signalled the beginning of a steady process of centralization, co-ordination, and nationalization of policing in England). The problem here is that half a century after the foundation of the new police, municipal governments still defined policing in broad sociopolitical terms. At the local level, ratepayers still saw themselves as employing police as ‘poor law officers, inspectors of nuisances, market commissioners, impounders of stray cattle and inspectors of weights and measures’ (Steedman 1984:8).

In effect, long after the emergence of the new police, the role of the uniformed officer was concerned, not merely with narrowly repressive functions, but with matters relating to the general ‘regulation’ of populations (Donzelot 1979). As Steedman indicates, the range of such work increased considerably after the 1856 County and Borough Police Act and the Local Government Act of 1858, police forces performing regulatory functions within the general structure of the ‘administrative state’. Primarily for reasons of cost and convenience, a variety of social functions were devolved on to local police forces, the 1856 Act breaking new ground by empowering magistrates to require the police to engage in work other than keeping the peace. During this period, then, the police undertook a wide variety of duties. As well as being engaged as poor-law relieving officers, their duties involved them in the inspection of lodging houses, the inspection of weights and measures, the collection of the county rate, the surveying of roads and bridges, the supervision of market trading, the impounding of cattle, and the inspection of nuisances. In this respect, officers were employed very much as an ‘administrative police’ by municipalities, though interestingly enough, despite the real variability of police work, a rudimentary conception of the appropriate police role was already prevalent amongst rank-and-file officers. (Whereas some administrative duties, such as inspection of weights and measures were unpopular because officers were brought into conflict with the ‘non-criminal’ middle classes, others such as the policing of vagrancy, were seen as more in line with the ‘genuine’ police role of dealing with ‘criminal’ populations.)

In fact, the period saw something of an ‘inspection fervour’, with suggestions that the police should be appointed as factory inspectors and, after the 1870 Education Act, as truancy inspectors. Indeed, ‘[c] arried away by the vision of a thoroughly policed and inspected society, some, including county chief constables, suggested that the homes of the poor should be inspected by the police, for cleanliness and against overcrowding’ (Steedman 1984: 54). Many of those forms of policing which did appear were, therefore, concerned with the ‘social’ or ‘moral’ regulation of the poor. In Plymouth, the ‘Sanitary Police’, formed from the ‘Water’ or ‘Dockyard Police’, enforced the residential and working restrictions contained in the 1864 Contageous Diseases Act, on the local population of prostitutes. Though this force was resented by the Plymouth City Police, it enjoyed considerable support from middle-class residents, medical and military professionals, and the local press (Marsden 1990). Here, as elsewhere, the principle of policing was very much in line with that proposed in Colquhoun’s Treatise on the Police of the Metropolis (1796), the aim being to ‘give the minds of the People a right bias’ (cited in Philips 1980: 177). To be sure, the moral concern expressed by writers like Colquhoun was, simultaneously, a concern about ‘dangerous classes’ of criminals, and many commentators have noted that the discourse of criminal pathology was conflated with discourses of sanitation, disease and moral pathology during the period (Hobbs 1988). Nevertheless, the prevalence of such ‘social’ or ‘moral’ policing (whatever its criminogenic undercurrents), together with the ‘administrative policing’ already described, demonstrates that 1829 did not signal a simple rupture in the structure and practice of local policing in England. Certainly by the 1880s centralization had begun to tie the interests of local forces to the concerns of the central state to an increasing extent. Equally, by that time chief constables had begun to reject the idea of the police serving as an executive arm of local government Yet, although the variety of roles performed by the public police was slowly reduced from what it had been before, the forms through which policing and regulatory functions could be exercised remained more diverse than police history has allowed for.

Just as police history has simplified the impact of the new police on ‘moral’ and ‘administrative’ policing, so it has simplified the impact of the new public forces on private forms of social regulation. It is certainly true that the formation of new police forces after 1829 ‘signalled the change from a law-enforcement system dependent on unpaid JPs, parish constables and ad hoc watch forces, to one reliant on bureaucratic, uniformed, paid police forces’ (Philips 1989: 114). Yet that generalization obscures the extent to which private provision, albeit more limited in scope, survived the formation of public forces. It is to the consideration of private forms of provision between the eighteenth and early twentieth centuries that the rest of this chapter is directed. During the course of it, I review selected examples from England and, to a lesser extent, from North America.

VARIETIES OF THE PRIVATE FORM

‘Thief-takers’, informers, and others

The history, structure, and organization of criminal justice can usefully be examined across three dimensions: the public and the private; the formal and the informal; the central and the local. With the risk of being over simplistic, it can be claimed, with some justification, that criminal justice during this period veered towards the ‘private’, ‘informal’, and ‘local’ side of that dichotomous classification.

This view is borne out in McMullan’s (1987) account of crime control in sixteenth- and seventeenth-century London. Here, control developed in a fragmented way, there being various forms of accommodation between central state, local state, citizens, and the criminal fraternity, including patronage, nepotism, and private initiative. During this period law enforcement in England rested on local settlements, districts engaging in various forms of self-policing. These modes of control reflected the fragmentation of the country into independent shire-states. London, however, posed different problems from other localities, having a growing and mobile population, an expanding crime problem, and a number of unregulated areas. These ‘wayward districts’ often had the character of medieval ‘liberties’ (places granted special status independent of city or state control by virtue of having been ecclesiastical franchises). Some harboured law breakers under feudal rights of sanctuary which, though having been legally terminated in the sixteenth century, sometimes persisted into the eighteenth. Enforcement agencies found it difficult to penetrate such areas and, in effect, ‘formal state control was an elaborate, negotiated and tenuous artifice’, order depending effectively upon a ‘fluid system of patron-client power blocs’ (McMullan 1987:123).

In this context law enforcement, policing, and punishment were open to purchase and negotiation. Policing, moreover, lacked any central command structure, and any attempt at central co-ordination met local resistance. In consequence, disorganization, coupled with the corruption arising from a speculative market in police services, led the city to encourage self-policing on a greater scale. Citizens were encouraged to spy on each other for reward, and to inform on their accomplices when arrested, in return for pardons. Fundamental to this informal economy of crime control was the principle of ‘set a thief to catch a thief’: ‘In policing terms, informers and thief-catchers were recruited from criminal worlds and sent back to survey them’ (McMullan 1987:134). Such practices, however, exerted a rudimentary degree of coordination and centralization over criminal justice, since the activities of informers and thief takers were authorized by the state. Justices of the peace encouraged victims to seek out intermediaries to recover their property, and the state’s trade in warrants and pardons linked the judiciary to the private thief-taking sector. What we have here, in effect, is an early form of public-private partnership in crime control: or, to take a more cynical view, an early version of the ‘commercial compromise of the state’ (South 1987).

The London example gives an insight into the structure of the English criminal justice system in the seventeenth and eighteenth centuries. First and foremost, the system was an amateur one. The only full-time state employees who enforced the law were revenue officers dealing with customs and excise. Criminal justice was mainly in the hands of parish constables (elected annually), along with justices of the peace and their deputies. Neither were paid, both offices being civic responsibilities rather than professions. However, justices charged fees and constables could reclaim costs incurred during their year of service.

This system was different from that found in absolutist states, such as pre-revolutionary France, where the monarch had access to a professional and centralized bureaucracy (Emsley 1983). In England, by contrast, suspicion of central state control meant that law enforcement was somewhat ad hoc. The military could be used against rioters and organized criminals, such as smugglers, but its intervention was unpopular with both soldiery and people alike (McLynn 1989: 18). Eighteenth-century England, unlike France, had no military governors and policing was a local function organized through relatively autonomous counties and parishes.

The problem was that this system posed increasing problems. First, it was being overwhelmed by the volume of law being generated by the expanding state, much of it aimed at the revocation of traditional rights, such as wood gathering. A second problem concerned the central state’s lack of effective control over certain parts of the realm. Some industrial areas were, effectively, lawless. In Southwark, for example, groups of vigilantes calling themselves ‘shelterers’ carried out a form of private ‘anti-policing’, defending people from arrest and ‘trying’ law officers. Areas which had been settled by squatters, such as the Kingswood Forest area of Bristol, were also havens for allegedly ‘ungovernable people’ (Brewer and Styles 1980). Finally, the system showed signs of chronic corruption. Some justices began to use their positions as a source of livelihood, gaining fees for the issuing of warrants and licences. So-called ‘trading justices’ set up ‘justice shops’ in large towns, selling licences for alehouses and protecting brothels in return for bribes. At the same time, the system of parish constables was breaking down. In part, this was due to the ambiguous role of the constable as both law enforcement officer and member of the community (Sharpe 1984). But the position had become increasingly problematical for the occupant, with the demands placed upon him by the expansion of the legal apparatus. Amateur constables, most of whom would have been tradesmen continuing to run their businesses on a daily basis, increasingly tried to escape office, either by paying a fine or by paying a deputy to perform their duties.

Private prosecutions and felons associations

Probably the most striking difference between this system and our own, however, was that there was little or no attempt at criminal detection. Crime was brought to the courts when victims prosecuted offenders. Officials did not go out to find it. Justices dealt with the evidence, but detection and apprehension of suspects was left to victims, who often went to great lengths to regain stolen property (Beattie 1986).

Obviously the system permitted considerable victim discretion as to whether and in what terms an offence was reported. Discretion was often coupled with informalism, justices encouraging informal settlements between victim and offender to keep less serious cases out of court. Some private and informal arrangements, such as those involving the payment by the victim of a ‘reward’ for the return of stolen goods, were also commonplace. The most famous exponent of this practice was the notorious ‘thief taker’ Jonathan Wilde, but the system was not peculiar to England and Cohen (1988) describes a similar form of private settlement (‘theft-bote’) occurring in eighteenth-century Massachusetts.

Reliance on private prosecutions had its attendant dangers. For one thing, the system was arbitrary and capricious. However, a later American example suggests that the system could also have certain benefits. In Philadelphia private prosecution, though costly, was widely used by working people from the seventeenth century until the formation of a public police force in 1854. People entered litigation for a variety of reasons: to gain justice; to intimidate a neighbour; to extort money; to prevent prosecution against themselves. Yet the system ensured a degree of popular control over criminal justice, giving people the ‘freedom to police themselves’ (Steinberg 1986:243). Not surprisingly, legislators wanted to dispense with a system which maximized popular consumer power. Yet, interestingly, many of those arrested and prosecuted by the newly formed police force continued to resist state monopolization of criminal justice ‘by prosecuting policemen themselves, establishing informal methods of adjudication with magistrates, and simply fighting back’ (Steinberg 1986:244).

In English rural areas, of course, informal mechanisms of social regulation, such as dismissal or chastisement by an employer, pressure from a priest or landowner, arbitration, or ostracism, enabled the criminal justice system to be bypassed as often as not (Sharpe 1984). In fact, large landowners, who controlled central government through parliament and local government through the magistracy, did not want a formalized/centralized system of criminal justice which would undermine their power base. After all, ‘what the eighteenth century gentry and aristocracy valued was the discretion which the system left them free to exercise’ (Philips 1980:158).

Even when formal prosecution was enacted, however, cost proved a disincentive. This problem encouraged some people of property to band together in ‘associations for the prosecution of felons’ so that costs of apprehension and prosecution could be shared. These associations developed rapidly after about 1760–70, and the 1839 ‘Royal Commission on a Constabulary Force for England and Wales’ identified approximately 500 of them. In fact, recent evidence suggests that the number was greater, estimates varying between the 750 to 1, 000 identified by Shubert (1981) and King’s (1989) figure of 1,000 to 4,000.

Felons associations, which usually consisted of between twenty and sixty members, were primarily concerned with crimes against property. Philips’s (1989) analysis of the surviving records of 213 associations in twenty-six English counties between 1760 and 1860 found only two cases of prosecution for murder, the bulk of the thirteen death sentences he discovered having been passed for property offences (horse theft, sheep stealing, burglary, robbery, and stealing from a shop). Associations were local. Most were restricted to a geographical area of no more than 10 or 20 miles, and there was little co-ordination or co-operation between different bodies. Associations provided two basic services. They offered rewards for information leading to arrest and conviction. (Shubert (1981) lists rewards ranging from £21 for murder to £10 for arson.) They also provided assistance to members in the prosecution process and would occasionally prosecute on behalf of non-members, too poor to do it for themselves. Some also undertook posse and patrol activity, the most famous being the Barnet General Association established in 1813.

Rude (1985) gives two examples of organizations set up by West Country capitalists. In Bristol in 1777, leading merchants combined to protect two ships and a warehouse threatened by arson, whilst in 1802, woollen manufacturers, having raised subscriptions to the value of £2,500, met at Bath to take common action against threats made by workers to destroy new machinery. Most groups, by contrast, arose in order to deal with problems of theft. Brewer (1980), for instance, describes an association of florists set up to counter flower thefts. But most were formed to deal with problems of burglary, sheep stealing, and horse theft. As in America during the same period—when an ‘anti-horse thief’ movement appeared (Brown 1975:125–6)—a surprisingly large number of associations were formed to deal with that crime (see Davey 1983:24; and Philips 1989:114–18).

The demise of the associations after about 1840 raises the question of their place in the history of policing and social regulation. Here, there are two diametrically opposed views. Shubert (1981) argues that the governing classes, by joining associations, sought to remove the element of discretion from the prosecution process. This, he says, contradicts Hay’s (1975) thesis that the judicious use of discretion by magistrates (seen in the widespread granting of pardons to offenders) was an ideological tool used by the rulers to ensure deference from the ruled. For Shubert, by contrast, felons associations represented ‘an attack on this system of flexible justice. Their concerns were those of Beccaria, Romilly and other legal reformers that the law be applied rigorously and consistently in order that criminals be deterred’ (Schubert 1981:37). Philips (1989), however, argues that this interpretation is far too simplistic. Certainly, many felons associations included in their articles stipulations that members who refused to carry through prosecutions would be excluded from the society. However, this penalty was rarely enforced, so the deterrence principle was adhered to only inconsistently. Nor, says Philips (1989), is there any evidence to indicate that asssociatio...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• The Rebirth of Private Policing
• Preface
• Acknowledgements
• Part I: Historical and Political Background
• Part II: Private Policing: Current Developments and Their Policy Implications
• Part III: Theoretical Conclusions
• Bibliography