Casual Offenders

J.S. Morrill

  • The Justice and the Mare’s Ale by Alan Macfarlane
    Blackwell, 238 pp, £8.50, March 1981, ISBN 0 631 12681 3

Alan Macfarlane likes to shock historians out of their complacency and out of a narrow preoccupation with their own period or their own mode of historical study. He is a professionally-trained historian and a professionally-trained anthropologist and his approach is truly interdisciplinary rather than multidisciplinary. He is also a polemicist of great power, as his demolition of the notion of an English peasantry in The Origins of English Individualism showed. In that work his canvas was broad, covering five centuries, and both argument and evidence were deliberately diffuse. Now, continuing his campaign against those who would see Tudor and Stuart England as a great watershed, as the time of transition from one social and economic order to another, he asks: how violent was early modern England? The question is aggressively posed and boldly answered, but the technique on this occasion is different: Macfarlane concentrates on explicating one involved case-study. Opinions are bound to vary on the appropriateness of his approach.

The title of this new book could not be less helpful: even the subtitle – ‘Law and Disorder in 17th-century England’ – gives little away. The kernel of the book (145 of its 200 pages of text) is a careful narrative and analysis of the activities of a band of robbers and coin-clippers at work in Cumbria and the Yorkshire Dales around Kirkby Lonsdale in the early 1680s, of the response of the local communities upon whom they preyed, and of the tireless (and for a long time ineffectual) efforts of one local magistrate, Sir Daniel Fleming of Rydal Hall, to secure their conviction. It is an extraordinary story very well told, largely in the words of the original depositions and other papers in the public records and in the extensive Fleming archive.

Macfarlane’s principal aim has been to put the present generation of historians of the period on trial. In the opening 25 pages, he argues that modern historians (deserting an earlier tradition) have presented a picture of Tudor and Stuart England as brutalised and violent, and have linked this spread of violence to the transformation from a feudal to a capitalist society. The main part of the book is intended to demonstrate that the fullest surviving account of ‘gang’ activity in a relatively backward but economically troubled region presents a very different picture: of a litigious but unarmed society that reacted sluggishly to the irritating lawlessness of a small minority whose incompetent criminality was the worst they had experienced for at least a generation, and who waited passively for the halting machinery of justice to enmesh the culprits. Macfarlane rounds off the book by drawing on historical-anthropological studies of really violent societies – 17th-century China, 18th and 19th-century France and modern Sicily. The Smorthwait-Bainbridge ‘gang’ in Cumbria in the 1680s are simply not in the same league.

This case-study is intended to elucidate the following points. First, that these felons were respectable men mainly rooted in the land and in the local communities: the Smorthwait brothers were gentleman and yeoman-farmers, one of them served as a high constable and as a grand juryman at quarter sessions in the 1670s; their associate Edward Bainbridge was another yeoman who had served as constable in one of the townships in Kirkby Lonsdale parish; one of their accomplices (both in the coining and in a burglary) was a local clergyman and schoolmaster. Their victims were frequently near neighbours, against whom the vizards worn by the robbers proved transparent disguises. Secondly, that their offences, the worst series recorded in the Northern Circuit files for the whole period 1650-1750, were amateurish, limited to specific, rather small gains, impulsive – a total of six known burglaries over a five-year period, a handful of highway robberies, cattle thefts and petty larcenies (including picking one another’s pockets); and in the background a persistent record of coin-clipping and counterfeiting which drew them into a network of some 140 men throughout the North of England. Thirdly, that the deployment of violence – as opposed to wild threats – was occasional and limited: no one was killed or permanently maimed and the one man who claimed to have been rendered immobile for some weeks seems to have been able to run several hundred yards to raise the alarm before succumbing to his wounds. Fourthly, that most of the offences were either bungled or led to the immediate recognition of the offenders by the victims. On one occasion, a planned highway robbery went wrong because William Smorthwait and Edward Bainbridge spent so long in an alehouse that their intended victim rode on by and home, causing them the inconvenience of having to attempt the burglary of a house full of people in order to gain the prize they had missed on the highway. Macfarlane’s final point is that the casualness of the offences was matched by the casualness of the pursuit. No information about the main burglary was laid before the justices for three years after the offence, and investigations only began as a result of confessions by men arrested for other offences. Most of the accused were captured more by luck than by design. In 1683, six of them were arrested and accused on 16 separate counts, backed up by the evidence of 27 separate witnesses, most of them eye-witnesses, yet the grand jury seems to have dismissed half the bills, and the trial jury acquitted on all the indictments they heard. Astonishingly, Fleming, who must have spent many days preparing for the trial, merely recorded that they were acquitted ‘by the help of a very favourable jury’ and made a note to himself that in future these men should be tried at Carlisle, far from their home base (which is what eventually happened). It is possible (but by no means as clear as Macfarlane tends to think) that, once convicted, the principals were hanged in chains in their home parishes, in terrorem. This would confirm the seriousness with which Lord Chief Justice Jeffreys viewed their doings, but it is otherwise irrelevant to the argument.

The narrative and analysis are neatly interwoven and the separate strands kept admirably clear. I am not sure that my own assessment of the documents presented would coincide with Macfarlane’s at every point, but the differences would essentially be ones of emphasis. Since the violence was rarely premeditated, the silence of witnesses is less likely to be rooted in fear of reprisals than in a (justified) scepticism about the prospects of successful prosecutions; more could be made here of the apparent supineness of the parish notables and of the first line of legal defence – the constables and high constables. Once ensnared, the felons accepted their fate: they made no attempt to resist arrest or to escape; they made deals to shop their comrades; and wrote abject letters begging for mercy. In some of the more trivial offences, they made restitution to their victims by informal arbitration or as the result of civil actions. It is not inconceivable that something similar could have happened in the case of some of the larger offences, for which they were prosecuted years later and not at the instigation of the victims. A lot of recent research, notably that of J.A. Sharpe and T. Curtis, has shown how many informal forms of redress lay open to the victims of crime – ostracism, chastisement, rough-music, binding over, etc. Prosecution was a last and desperate resort: if – as has been argued – less than half of those prosecuted for felony were convicted and less than one-sixth of those convicted of capital offences were executed, it was also an ineffective one. Getting a neighbour hanged for the theft of a cow would not bring the cow back, could cause a greater rift in the community than the offence itself had done, and might even cause the rates to rise to support the widow or orphans. The total absence of blood-feud and violent counter-action strengthens Macfarlane’s case: but positive respect for the law and its sanctions may not be as crucial as he maintains.

How violent was early modern England as a whole? In answering this question firmly in the negative, Macfarlane is generally persuasive, but our satisfaction should be tempered by two considerations: he has overstated the arguments he attacks and he has made larger claims for his local study than it is proper for him to do. He indicts recent historians for seeing Tudor and Stuart England as a bleak and brutal world. In support of the charge, he arraigns the work of ten historians (the great majority of whom, I might add, chauvinistically, live and work in the United States – the only home-based ones being A.L. Rowse, L.A. Clarkson and F.G. Emmison, none of them specialist social or legal historians). But even those whose overstatements are quoted against them – notably Carl Bridenbaugh and Lawrence Stone – do not claim that England in this period was as violent as 17th-century China or mafioso Sicily. They are principally arguing for a general predisposition to petty cruelty and impulsive striking-out greater than in contemporary society. Furthermore, it is largely domestic violence and daily spitefulness that they are concerned with. Macfarlane’s obiter dicta about the absence of evidence in the Northern Circuit records of high levels of domestic violence or blood-feud are borne out by my own knowledge of the sources, but they are merely asserted in this book. It is rather a lot to be expected to take on trust. The activities of the Smorthwaits are not proof that Stuart Englishmen did not beat their wives. Transatlantic scholars may see England as a land worth fleeing: English historians have been more sanguine. Little or no reference is made to the important collections of essays edited by J.S. Cockburn (Crime in England, 1550-1750), by John Brewer and John Styles (An Ungovernable People?) and by V.A. Gatrell, B. Lenman and G. Parker (Crime and the Law); to the implications of the work of Peter Laslett; and above all to the burgeoning number of studies of riot. Whether or not we subscribe to notions of the moral economy of rioters, one cannot but be struck by the self-discipline both of the rioters and of their victims. It would he hard to add to Macfarlane’s list of scholars who have written (very impressionistically) of the lawlessness of the English countryside: it would be easy to swamp it with counter-examples.

Why should one well-documented case in the North-West serve to take away the image of a terrorised countryside in other parts of England? Of course it cannot. The Justice and the Mare’s Ale does not explode the myth of hearth and alehouse-yard seething with tension (although the March 1981 edition of the Historical Journal contains an article by J.A. Sharpe which goes some way to doing that). It cannot even banish banditry from England: only from the North-West. But it is a powerful additional pointer. Its justification should be – and is – that the records for that region in the late 17th century are unique. For some parts of the country, assize indictments survive in large numbers and have been subject to quantitative analysis. They afford a good deal of information about legal process and about the kinds of offence which proved worth prosecuting. But indictments are unyielding, terse documents: all pith. Only for the Northern Assize Circuit does the crucial source survive which puts the events surrounding a ‘crime’ into a social context: the depositions and examinations taken from those involved. They are factually revealing but they also tell us a great deal about the attitudes and values of the deponents, and Macfarlane’s handling of this material is so clear and wide-ranging that his book adds an important dimension to our understanding of social deviancy and of the workings of the law in early modern England. He has illuminated the criminality of the respectable; he has shown the ineffectiveness of a policeless state; he has demonstrated the remoteness and randomness of judicial severity; he has shown that it was fear of natural disaster, not of the depredations of their fellow men, which tyrannised the lives of Stuart Englishmen. His story is convincing, however, not because it overthrows the work of others – as he claims – but because it in fact confirms it. Anyone who has read the Home Circuit indictments, or the printed Quarter Sessions Records of Lincolnshire and Staffordshire, Warwickshire or Worcestershire, anyone who has pondered the (problematical) published statistics of ‘criminal’ prosecutions, or the local community studies of Terling in Essex or Myddle in Shropshire, with their emphasis on the rise of informal social controls, or who has read B. Sharp or (better) J. Walter on rioters, will find their views clarified and confirmed by this book. If we leave aside the battlefields of 1642-51 and 1685, there were probably more dead bodies on and off stage by the end of a production of Hamlet or Titus Andronicus than in the wake of any violent clash in the real life of Stuart England; the state hanged more men than were murdered each year by their fellow citizens, yet hanged fewer than any other state in Europe.