- Crime and the Courts in England 1660-1800 by J.M. Beattie
Oxford, 663 pp, £48.00, April 1986, ISBN 0 19 820057 9
This is in many ways a fine study. In over six hundred pages of lucid and carefully presented material Professor Beattie has provided an exemplary analysis of the Surrey Assize and Quarter Sessions records between 1660 and 1800, as well as parallel records from the Sussex courts. It is done with subtlety and care. Concentrating on robbery, burglary, larceny, homicide, infanticide and rape, the author shows the patterns of prosecution and punishment. He is well aware of the great difficulty of using such prosecutions as a mirror of actual offences, but is able to show that such records can indeed be seen as reflecting the incidence of crime. By comparing the prosecution rates to food prices, by showing how rates correlated with periods of war and peace, by noting the similarities between Surrey and Sussex, he proves that prosecuting levels did not merely reflect anxiety and prosecuting zeal. His account of the role of the magistrates, the nature of the juries and trials, the changing nature of sentencing and pardons, the penalties and reprieves, will be of great use to all future historians of this period.
Among the many areas where his analysis is illuminating are the following. The accused were, as today, mainly males, aged between 18 and 24, and unmarried. They were not just the very poor: ‘half the men on trial in Surrey claimed to have worked at a trade that had required training and skill.’ The thesis that property crime was the produce of a sub-culture of the very poor ‘fits ill with the evidence’. In so far as there were criminal gangs, they were ill-organised, loosely connected, with constantly fluctuating membership, and small in size. There was no equivalent to a Mafia, no code of honour. People switched in and out of legitimate and illegitimate activities as the mood and market dictated. Patronage was unimportant in the obtaining of pardons and reprieves. There were no ‘bandits’, and the highwaymen were very far from being latter-day Robin Hoods.
The analysis of those who constituted the juries of life and death and undertook the prosecutions, mainly small farmers and tradesmen, brings further evidence that the thesis that the law was merely an instrument of upper-class or élite oppression is far too simple. We are shown that ‘there was no profound division in society over the legitimacy of the criminal law and the system of judicial administration,’ that ‘the law appears to have been widely accepted in society as a means of settling disputes and ameliorating public grievances.’ We are told that ‘despite the common experience of death ... there was no indifference to murder.’ The recently fashionable view that people became brutalised by high infant and adult mortality rates does not fit this evidence.
The documentation of the effect of the rapid growth of London during this period, as well as the general population upsurge from the second quarter of the 18th century, is especially welcome. We are shown how an old system of containing crime, working reasonably well to the end of the 17th century, was put under new strains. The problems of urban crime, of which property crime was a particular example, forced people to devise new methods of policing and punishment. Beattie shows the much higher rate of robbery and burglary in the ‘urban’ parts of Surrey, and the pressures this put on the Government to tighten up the law.
While accepting that the ‘old’ form of trial ‘remained in many ways intact’ in 1800, Beattie argues that there was one major change in the trial procedure which was beginning to have revolutionary implications. This was the introduction of the possibility of allowing lawyers for the defence at the judge’s discretion. Until about 1730, the accused had to defend himself or herself, and this, as many legal historians have noted, could put an inarticulate or cowed individual in a difficult position. Although Beattie admits that he may have overemphasised and exaggerated the effects of the change, a great deal of the book is concerned with documenting these effects. He argues that there has long been a myth that English justice was special. Trial by jury and the adversarial system with the judge as the ‘prisoner’s friend’, combined with the notion that a man is innocent and has basic rights until proven guilty – all these were of little avail in practice. They awaited the introduction of defence lawyers, the slowing-down of the pace of the trial so that each condemned person was considered separately by the jury, and clear rules of evidence. All this happened in the 18th century. In essence, he evokes an incipient legal revolution, with a change from arbitrary and punitive justice to the ‘modern’ concepts of prisoner’s rights, careful scrutiny of the evidence, a real presumption of innocence. Though there is a half-truth here, the change is not so dramatic or one-way.
Trials continued to be very hasty in the Old Bailey until the middle of the 19th century, and certain offences are still dealt with very rapidly in magistrates courts today. The question of innocence until proven guilty is particularly complex. Beattie shows that up to the 18th century the evidence of guilt was assembled and then was put to the defendant, who had to show that it was not true. The right to remain silent, Beattie claims, is recent, and connected to the growing presence of defence lawyers. That a string of accusations were made against a person, who was asked to comment on them in public, suggests that the courts did not assume him to be innocent. Here the subtle difference between being innocent until proven guilty, and being not guilty until proven guilty, needs further exploration. Today in English courts it is the same. Evidence is assembled for the prosecution, and this is put to the accused or his lawyer, who can, as in the 17th century, agree to comment on it, or refuse to do so. The judge and jury will today, as they did in the past, draw their own conclusions from answers or from silence. At the end, the accused will never be pronounced or even thought of as ‘innocent’, but merely ‘not guilty’. In other words, there is not enough convincing proof of guilt. I fail to see that the assumptions have changed deeply. Nor does the fact that a man answers for himself, or is represented by a lawyer, necessarily, in practice, change the court’s attitude to him, as Beattie assumes. Magistrates have told me that they do not assume that someone without a lawyer is necessarily regarded differently in terms of presumption of guilt or innocence from a person being represented.
Professor Beattie is also dismissive of jury trial. He is ironically amused by the ‘mystical reverence’ paid to the trial by jury as a ‘bulwark of English liberty’ and shows a considerable scepticism concerning such a romantic notion. Now it is indeed true that there were flaws in the procedure: the hurry, disorder, lack of experience, and so on. Yet any real acquaintance with the alternatives at the time – basically the inquisitorial process of Roman Law and the Inquisition, a standard use of torture, no protection from arbitrary and politically-directed law – might have made Beattie a little more appreciative. To argue that a bulwark has holes, and is not as high as it might be or is now, is not to overthrow the fact that it was an extraordinary and marvellous feature. That juries often withstood the force of the rich and powerful, that ‘the Surrey juries acquitted a considerable proportion of the prisoners who came to trial’ – almost half of those accused of property offences, for instance – indicates a far from dormant role.
Professor Beattie argues that only with the extensive publication of rules of evidence in the 18th century did the gradual tightening-up of procedure – in particular the setting of narrow bounds of relevance – that characterises modern Western practice begin. This is again only a half-truth. It is correct that things were formalised and written down in a new way in the 18th century: they were tidied up and made more precise. Yet a deeper acquaintance with trials before 1660 would have shown that there were customary rules concerning what could and what could not be brought as evidence – apparent, for instance, in exceptionally difficult cases such as alleged witchcraft or poisoning. It was then argued that the evidence of wives and children, that hearsay and gossip, that the previous character and reputation of the accused, could all be used, whereas this was normally not allowed. Dalton’s Countrey Justice of 1618, for instance, contained several pages on the evidence admissible in felony cases.
The author’s arguments concerning the causes and consequences of changes in penalties for crime are also disputable. In several passages which remind one of Foucault, though he is never mentioned, we are told that
by the end of the 18th century one penal regime was rapidly giving way to another. The older forms of punishment were public and violent. They attacked the body ... The essence of the new cause was to attack not the prisoner’s body, but his mind and soul.
Although it is admitted that it was ‘not necessarily less cruel, nor indeed less violent’, to send a man to imprisonment on a rotting hulk, or for years into virtual slavery in America, rather than whipping or branding him on the thumb, there is often an open implication in the argument that this important change was both a cause and an indication of a more humane, less bloodthirsty, less violent society.
The detailed evidence provided for us fails to support this implication. First, the timing is wrong. While allusions to a growing humaneness or to a dislike of blood sports and public executions are located at the end of the 18th century, it is one of Beattie’s major achievements to have shown that the decisive change in penalties occurred during the first quarter of that century. In the useful summary graph of patterns of punishment in the Surrey courts we see that the dramatic shift from the use of whipping and branding to the use of transportation and imprisonment occurred in the period between 1715 and 1720. By 1725, the pattern had been permanently reversed. Secondly, the reasons for the change are wrong. Beattie shows that the arguments for the change had nothing to do with a growing dislike for violent physical punishments. It was the feeling that old methods were not working in the face of rising urban crime, combined with growing affluence and links with the American colonies, which for the first time allowed a society to lock up or transport its unwanted population. Savage pamphlets arguing for the need to make punishments even harsher continued throughout the period. Looked at from the 17th century, what distinguishes the 18th century is not its growing humanity, but the vast extension in the number of capital offences, the calls for people to be broken on the wheel, the swelling populations in overcrowded prisons. This is not to deny the concern of men like Howard and Hanway towards the end of the century. Yet to believe that a concern with reforming deviants was a new phenomenon in the 18th century is also too simple. A considerable literature had existed in the shape of pamphlets from at least the 16th century on the need to bring people back to godly citizenship, and much of the ecclesiastical court structure was based on the idea of re-absorption and reform. The change from whipping, pillory and branding to imprisonment and transportation is indeed an important one: but its original causes lie more in the fears of public disorder and of the ineffectiveness of old penalties, than in any growing humanity.
Given these difficulties, it is not surprising that Beattie’s attempts to show that the history of capital punishment reflects a mounting revulsion against cruelty do not work. Although there was some overall trend downwards in the number of executions, there were several periods towards the end of the century when the rate rose to very high levels. For instance, we are told that ‘the overflowing of the jails may have been partly responsible for the astonishing level that capital punishment was to reach in the mid-1780s.’ In the second half of the century, fines increased in size, and long gaol sentences were given rather than floggings. By the end of the period a world where punishment was immediate, public and infrequent was replaced by one where offences had been multiplied and punishments made more lingering.
There are some curious inconsistencies in the dating of the supposed transformations that are meant to have occurred, and some equivocation as to whether the changes had occurred at all. On the one hand, we are persuaded that we are witnessing changes that transformed the legal system and laid the foundation for modern law: ‘the criminal law and the machinery of its administration had been transformed by the third decade of the 19th century.’ Attitudes to crime had changed, court procedure had changed, penalties had changed. On the other hand, we are told that ‘the established systems of laws and administration and punishment and the assumptions that lay behind them not only survived the Restoration but were extended and enlarged over much of the period we are concerned with.’ As a result, for ‘a century and more after the Restoration there was little sign of opposition to the principles and assumptions upon which the law and its administration rested’. Thus the ‘old’ form of trial ‘remained in many ways intact in 1800’. The contradiction can be overcome by a use of those concepts which F.W. Maitland and others developed concerning the mixture of continuity with change. Yet there is little discussion of this.
A confusion as to when the system began to veer off in a new direction is also evident. Sometimes it is argued that some of its old forms of trial elements ‘were beginning to change over the second half of the 18th century’. Elsewhere the crucial changes are seen as occurring in the early 19th century. At other times we are told that ‘it had become clear as early as the second half of the 17th century’ that the old legal system ‘did not serve as adequately the needs of an urban society’. Thus we are correctly reminded that in studying the most significant of all the transformations – namely, that in penal practice – we need to push its beginnings back ‘to the late 17th century (at least)’. The implication of this, as Beattie sensibly points out, is that we will have to find causes for the change ‘that do not depend on the immediate influence of Enlightenment rationalism or on the social consequences of the Industrial Revolution’. Unfortunately, no satisfactory explanation is offered, although it would not be difficult to draw together, for that purpose, the effects of the growth of London, the effects of peace and increasing prosperity, and dissatisfaction with current penalties.
If we accept that while much of the material produced is of great interest, the framework of explanation is unsatisfying, we might want to speculate why this should be so. There seem to be a number of reasons. There are the results of temporal myopia. Starting in 1660 and stopping in 1800, and saying little about what happened before or after, gives a truncated argument. Some of what is implied about the period before 1660 is oversimplified or misguided; too much change is ascribed to the period of study. Another difficulty is the almost exclusive concentration on a particular sub-set of the judicial system. There is no discussion of how the criminal courts fitted with the other equally important aspects of the law – with equity, with petty sessions, with manorial courts, with ecclesiastical courts. English law was mainly concerned with property, criminal law being only a very minor branch of the law. If we want to know how criminal law and the control of violence worked we really need some sketch of the other methods of resolving disputes.
There is also a certain bias caused by the ‘macro’ and statistical approach. For many topics, such as the incidence of offences, this is fine, and Professor Beattie has supplemented the indictments and recognisances with some very lively trial accounts. Yet, as he is the first to admit, it is the perception of criminal activity and the relations of criminal behaviour to other behaviour that are important. To isolate violent crime and to take it out of its social, cultural and economic context tends to distort the past by making it too violent, bloody and irrational. A further difficulty is created by the absence of any comparative framework. Throughout the book, the implicit comparison is with the present. When rates are ‘high’ or ‘low’, people ‘rational’ or ‘irrational’, the judicial system ‘fair’ or ‘unfair’, it is by modern standards that Beattie judges. This is what we all do. Yet it also needs to be corrected by some explicit comparison with other systems, both in the past and the present. For instance, only a real comparison with European legal systems in the 18th century can hope to bring out many of the central features of English law and society: the importance of self-policing, the absence of weapons, confidence in the law, the uniqueness and value of juries.
A final difficulty related to this comparative one lies in the acceptance of an unexamined Whig model of history which Professor Beattie has tried to apply to the development of criminal law. His vision is not far from that of Macaulay or Trevelyan – of a long evolution from barbarism and violence to civility and rationality, with the 18th century as a crucial period. The model is well shown in the treatment of the vexed topic of violence and character, over which, as Beattie acknowledges, my position and his are known to differ. As we have seen, the evidence from the legal records is equivocal on whether there was a real decline in the violence of the population or of the law.
Yet Beattie is still convinced that there was a ‘mental sea-change’, with a growing abhorrence of cruelty and inhumanity. ‘Men and women would seem to have become more controlled, less likely to strike out when annoyed or challenged ... This supposes a developing civility.’ In support of this, Beattie tries to draw on evidence from outside the criminal courts. Crowds, he argues, were unruly and vicious in a way that we would no longer countenance. This is difficult ground. It would be very easy to argue quite convincingly that crowds were more violent in the 18th than in the 17th and 16th centuries, and more so in the 19th than in the 18th. It would indeed be difficult to see a smooth and secular decline from brutalised crowds in the Middle Ages to well-behaved public gatherings in the 19th century. Again, we are told that whereas family discipline was based on brutal and physical behaviour up to the 18th century, gradually a new feeling of affection and gentleness crept in. Many would reject such a view as a gross distortion. Likewise the evidence concerning a growing kindness to animals does not fit such a simple chronological scheme.
It would be foolish to deny that towards the end of the 18th century there were new arguments against capital and public punishment, and a new and more sympathetic attitude towards suffering. But it is a distortion to infer from this that the majority of those living before 1750 were violent, hot-tempered, callous and cruel. A few years ago we might have deluded ourselves into thinking that we had grown too civilised to witness public violence. Yet the whipping and hanging of the occasional criminal in the 16th or 17th century is as nothing to the consumption of violence and cruelty now enjoyed every evening by the populations of ‘civilised’ Western nations on their television screens. While it is true that increasing wealth has enabled us to shut convicted criminals out of sight and mind in foul conditions, whereas before they would have been whipped, branded or executed, it is difficult to argue that this represents a clear decrease of violence on the part of the state or its citizens.