Crime and Society

Readings in History and Theory

Mike Fitzgerald, Gregor McLennan, Jennie Pawson, Mike Fitzgerald, Gregor McLennan, Jennie Pawson

• Publisher: Routledge
• Year: 2003
• eBook ISBN: 9781134972685
• Edition: 1
• Topic: Social Sciences
• Subtopic: Sociology
• Index: Social Sciences

First Published in 1980. Routledge is an imprint of Taylor & Francis, an informa company.

PART I HISTORY:
Introduction

The first part of the book brings together extracts from recent work in the social history of law and crime. The use of an extended selection of this kind reflects the need to supply the historical dimension to problems of crime and society—a dimension which has often been lacking in criminological analysis. The study of past patterns of crime and control is interesting in its own right, but also enhances consideration of contemporary issues. There are two aspects to the uses of history in this context.

First, by focusing on particular sociohistorical contexts, we are struck by the fact that definitions of law, crime and punishment change according to economic and ideological circumstances.

It is often pointed out, for example, how feudal legal relations based on fixed status and residence were adapted to meet the demands of a new social system requiring a ‘free’ mobile labour force (J.Hall, ‘Theft, Law and Society’, Bobbs-Merrill, Indianapolis, 1952).

Second, a historical awareness guards against the impression that features of lawbreaking, policing or punishment are either entirely new, or, conversely, remain unchanged. Instances of ‘hooliganism’, ‘crime waves’ and threats to public order in the historical literature can be placed alongside frequent journalistic panics about moral degeneration today. Similarly, a historical perspective helps to make us aware, for example, that questions of the nature and extent of police powers, far from being only a ‘contemporary’ issue, have been present as a major topic of debate and disagreement since the formation of the police force itself. The permanently close but shifting relation between ‘political’ and ‘criminal’ illegality is itself of central importance to both historians and criminologists.

Our readings deal with the eighteenth and nineteenth centuries, and are limited to British (predominantly English) examples. The idea here is to provide indispensable ‘backgroundmaterial for general issues rather than to illustrate a chronological or evolutionary sequence. The sections are therefore organized on a thematic basis.

The first group of readings highlights the relationship between judicial ideologies and economic development. In eighteenth-century Britain there was a remarkable increase in the number of statutes which dealt with offences against private property, and which carried the death penalty. But the mechanisms of punishment were dramatically arbitrary. The dispensation of the law rested as much on the power and mercy of the judges themselves as on the formal requirements of the new relations of capitalist ownership. Douglas Hay’s article, taken from the influential collection on the eighteenth century, ‘Albion’s Fatal Tree’, cogently summarizes and interprets the complex interplay of coercion, ritual and justice in pre-industrial capitalism. Hay’s piece is balanced by the reading from Brewer’s and Styles’s book ‘An Ungovernable People’, which emphasizes the reactions of the popular classes to the controls of what E.P.Thompson has termed ‘patrician society’. These plebeian responses ranged from cautious deference to turbulent resistance to the process by which customary economic and cultural practices were ‘criminalized’. Finally in this section, Michael Ignatieff discusses the competing strategies for prison reform in the late eighteenth century. He definitively points up the contradictory elements in the reformers’ conception of scientific punishment and social discipline.

The second set of readings centres on the formation and development of the police. In the 1820s, new procedures of crime control were created, and Michael Weisser has argued that ‘the method devised for dealing with political criminals was the police’ (‘Crime and Punishment in Early Modern Europe’. Harvester Press, 1979, p. 156). This argument may be right, but it does not bring out the paradox that, even then—and certainly today—the police best fulfil this function when their main concern is seen to be the control of non-political offences.

To view the police as direct participants in ‘class struggle’ rather than detectors of the criminal fraternity is often thought to be itself an ‘ideological’ interpretation of their function. Our readings here suggest otherwise; but they also indicate that there need be no contradiction between the ‘civil’ and ‘political’ functions of the police.

In the views of nineteenth-century observers, at least, there was a direct connection between policing the criminally ‘dangerous’, and dealing with political opposition to the social system. The reading from Radzinowicz illustrates the different strands of thinking about the role of the New Police, while Storch and Cohen (who deals with a considerably later period) describe the quasi-political effects of policing working-class communities. In sharp contrast, the employing class were inspected rather than policed. The extract from Carson is appropriate here because it shows the failure of entrepreneurs to fulfil legal obligations in one central case: the Factory Acts. However, these failings were regarded as misdemeanours rather than crimes, and consequently employers were encouraged to reform, but were not prosecuted.

The image of the teeming industrial city, its hidden ‘abysses’ and criminal areas, has fascinated observers for the best part of two centuries. On the one hand, this imagery expressed a growing Victorian concern about the apparent and lawless separation of the ‘dangerous’ class from ‘respectable’ and ‘industrious’ workers. Henry Mayhew was the first and most impressive recorder of the sunken classes, and our extracts from ‘London Labour and the London Poor’ (4 vols, written 1851) illustrate the widely held notion of specifically criminal areas. The readings also include a description of particular social groups which engaged in irregular economies and unrespectable cultural activities.

Gareth Stedman Jones’s account of ‘outcast London’ centres on the last quarter of the nineteenth century. The perceptions and strategies of those seeking the moral reform of the human ‘residuum’ are analysed by him in terms of several interrelated social factors: the residential segregation of classes, the casual labour market, and the return of political class conflict in the 1880s. Throughout this suggestive piece, the tangible but uneven relationship of social conditions to poverty, crime and disorder is apparent.

The final section in this part takes up the isolation of youth as a particular category of offenders. Mayhew once more provides a vivid illustration of London street life in his description of child street-sellers, vagrants and delinquents. In particular we can see how their attempts to maintain a subsistence level of existence were subjected to processes of criminalization. Pinchbeck’s and Hewitt’s account of major legislative landmarks in juvenile justice throughout the nineteenth century highlights the contemporary dilemma of whether to control the ‘problem’ of delinquency by punitive or reformative methods. The recent proposal to mete out ‘short, sharp shocks’ to criminalized youth can indeed be seen, in its combination of retributive and moralistic motives, as but a further stage in the logic of this development.

It has not been possible to include articles on the regulation of poverty (the Poor Law, for example) or on the profound changes in popular leisure which exercised the police for several decades. Such material is highly relevant to apparently narrower questions of criminal ‘subcultures’ and conceptions of legal and moral discipline. If a historical perspective assists a sharper analytical perspective on contemporary events, that is justification enough for a substantial ‘history’ section in a Reader of this kind. Finally, we should repeat that while a theoretical and historical perspective on crime is encouraged here, our material is restricted to modern British society.

Law and Ideology

1
Property, authority and the criminal law

Douglas Hay

[…] All men of property knew that judges, justices and juries had to be chosen from their own ranks. The jury, the supposed guarantee that an Englishman would be tried by his equals, had a sharp property qualification. The reason, simply put, was that the common Englishman could not be trusted to share in the operation of the law. A panel of the poor would not convict a labourer who stole wood from a lord’s park, a sheep from a farmer’s fold, or corn from a merchant’s yard. As Gisborne pointed out, even as witnesses ‘many of the common people… are found to make use of a very blameable latitude in their interpretation of the ninth commandment; and think that they are guilty of no breach of it in deviating, though upon oath, from strict truth, in favour of the party accused’.¹ The cottager who appeared in court charged with theft had no illusions about being tried by ‘his equals and neighbours’, whatever the writers of law books claimed.² The twelve men sitting opposite him were employers, overseers of the poor, propertied men. In most cases they were the equals and neighbours of the prosecutor, not the accused, and this was especially true in cases of theft. The point is not that such juries convicted against the evidence, but rather that a more democratic jury might not have convicted at all. In the constitutional struggles of the seventeenth century, ‘middling men’ of moderate property had wanted the widest possible extension of trial by jury; the Crown had tried to restrict it because juries shielded sedition. There was another small group, however, who had also wanted to control juries. Winstanley and the Diggers repudiated them as protectors of property against the rights of the poor. There were no Diggers in the eighteenth century, but cottagers and labourers were undoubtedly aware that English justice was still the creature of judges and juries.³

Eighteenth-century ‘justice’ was not, however, a nonsense.

Source: D.Hay, P.Linebaugh and E.P.Thompson, ‘Albion’s Fatal Tree’, Allen Lane, 1975, extracts from pp. 38–63.

It remained a powerful and evocative word, even if it bore a much more limited meaning than a twentieth-century (or seventeenth century) egalitarian would give it. In a society radically divided between rich and poor, the powerful and the powerless, the occasional victory of a cottager in the courts or the rare spectacle of a titled villain on the gallows made a sharp impression. Moreover, it would be wrong to suggest that the law had to be wholly consistent to persuade men of its legitimacy. ‘Justice’, in the sense of rational, bureaucratic decisions made in the common interest, is a peculiarly modern conception. It was gaining ground in the eighteenth century. Most reformers worked to bring about such law, and of all such schemes Jeremy Bentham’s was the logical conclusion. Yet his plan for a criminal code that was precise, consistent and wholly enforced was alien to the thought of most eighteenth-century Englishmen. They tended to think of justice in personal terms, and were more struck by understanding of individual cases than by the delights of abstract schemes. Where authority is embodied in direct personal relationships, men will often accept power, even enormous, despotic power, when it comes from the ‘good King’, the father of his people, who tempers justice with mercy. A form of this powerful psychic configuration was one of the most distinctive aspects of the unreformed criminal law. Bentham could not understand it, but it was the law’s greatest strength as an ideological system, especially among the poor, and in the countryside.

The prerogative of mercy ran throughout the administration of the criminal law, from the lowest to the highest level. At the top sat the high court judges, and their free use of the royal pardon became a crucial argument in the arsenal of conservatives opposing reform. At the lowest jurisdiction, that of the Justice of the Peace, the same discretion allowed the magistrate to make decisions that sometimes escaped legal categories altogether. Although he frequently made obeisance to the rules when convicting, […] he could dispense with them when pardoning, and the absence of a jury made it even easier for him to do so. Latitude in the direction of mercy caused some critics to complain that many justices, partly from laziness or carelessness ‘but frequently from benevolent views improperly indulged’, judged cases ‘partly or entirely by their own unauthorized ideas of equity’.⁴ This element of discretion impressed Weber when he examined the office of JP. He compared it to Arabic ‘khadi justice’—a formalistic administration of law that was nevertheless based on ethical or practical judgements rather than on a fixed, ‘rational’ set of rules. It could combine rigid tradition with ‘a sphere of free discretion and grace of the ruler’.⁵ Thus it allowed the paternalist JP to compose quarrels, intervene with prosecutors on behalf of culprits, and in the final instance to dismiss a case entirely. The right of the pardon was not limited, however, to high court judges and Justices of the Peace. The mode of prosecution, the manner of trial and the treatment of condemned convicts gave some of the same power to all men of property. ‘Irrationality’, in the sense used by Weber, and the ‘grace of the ruler’ which grew from it pervaded the entire administration of the law.

Almost all prosecutions were initiated by private persons, at their discretion, and conducted in accordance with their wishes. Accustomed to organized state police and rigorous state prosecution, French visitors were inclined to marvel at this peculiar English institution. Charles Cottu, a French judge who toured the Northern Circuit in the early nineteenth century, exclaimed,⁶

The English [that is, state officials] appear to attach no importance to a discovery of the causes which may have induced the prisoner to commit the crime: they scarcely even affix any to the establishment of his guilt. I am ignorant whether this temper of mind arises from their fear of augmenting the already excessive number of public offenders, or whether it proceeds from their natural humanity; it is however an undoubted fact, that they make no effort to obtain proofs of the crime, confiding its punishment entirely to the hatred or resentment of the injured party; careless too, about the conviction of the accused, whether his victim shall yield to feelings of compassion, or give way to indolence.

Cottu did not appear to have heard, or understood, the traditional arguments of English gentlemen against a constabulary and state prosecution: that it could lead to despotism, a political police serving the Crown. He did understand, however, the consequences of private prosecution. The victim of the crime could decide himself upon the severity of the prosecution, either enforcing the letter of the law, or reducing the charge. He could even pardon the offence completely by not going to court. The reformers’ objections to this system are well known. Private prosecution was capricious and uncertain, and too often rogues escaped due to the distaste, compassion or fear of their victims. But reformers failed to acknowledge the great power this conferred on the prosecutor to make the law serve his own purposes. In Cottu’s words, the accuser became ‘the arbitrator of the culprit’s fate’, and the law became an expression of his will. In short, it was in the hands of the gentleman who went to law to evoke gratitude as well as fear in the maintenance of deference.

In a rural parish with a relatively settled population there were many alternatives to a rigorous prosecution. The accused man could be made to post a bond not to offend again, or be given the choice of leaving the neighbourhood. The threat of prosecution could be held over his head to ensure his future good behaviour. He might also be allowed to escape the law by making compensation for his crime, and the negotiations between Richard Ainsworth and his master Nicholas Blundell in 1709 were repeated in all parts of England, throughout the century. Ainsworth was caught stealing, begged Blundell repeatedly not to prosecute, and entered into negotiations to work on one of his master’s houses in return for forgiveness.⁷ Other accused men simply appealed to the merciful feelings of the man who held them in his power. The wretched thief begging on his knees for forgiveness is not a literary conceit, but a reality described in many legal depositions. Critics of the law objected, however, that many prosecutions were dropped through fear as well as compassion. Certainly it is true that feeling against some prosecutors ran so high that they went in fear of their lives from popular opinion, or felt obliged to defend their actions in the press. Yet where certainty of enforcement had to be sacrificed to public opinion, even then graciously granted mercy could produce gratifying deference. Especially where the prosecutor was a landed gentleman, acts of mercy helped create the mental structure of paternalism. The papers of any large landed proprietor are peppered with appeals for pardons, and earnest thank...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Acknowledgments
• General introduction
• Part I History: Introduction
• Part II Theory: Introduction