English Violence

Alan Macfarlane

  • 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.

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