F for Felon

Roy Porter

  • Policing and Punishment in London 1660-1750: Urban Crime and the Limits of Terror by J.M. Beattie
    Oxford, 491 pp, £48.00, July 2001, ISBN 0 19 820867 7

Given their importance as an instrument of social regulation, it’s odd that the law and law enforcement were so long cold-shouldered by historians. From the time of Blackstone, legal history remained the province of lawyers, whose labours of love bore more relation to the apologetic hermeneutics of Bible scholars than to ‘historical method’. Common law was wisdom to be worshipped, rather than social text to be demystified. The history of policing and punishing had its shortcomings, too. In Britain, it took the form of a Whiggish story of progress, narrated in support of reformist agendas. Fabian historians homed in on an ‘Age of Reform’ from the late 18th century: Jeremy Bentham’s utilitarian penology, prison reform, campaigns against the death penalty and (the great watershed) the setting up of the Metropolitan Police by Peel in 1829. Before then, all was ancien régime darkness. Rejoinders naturally came from early Marxists, but their thinking was no less doctrinaire: law and policing were hammers of the poor, weapons of class oppression serving the privileged interests of landed capitalism.

Such simplistic readings of the criminal justice system were decisively challenged a generation ago by the bold reformulations of E.P. Thompson and his co-workers. In a series of inspirational writings – an edited volume, Albion’s Fatal Tree: Crime and Society in 18th-Century England (1975), and a brace of books: Whigs and Hunters: The Origin of the Black Act (1975) and Customs in Common (1991) – Thompson and Co offered far more sophisticated interpretations of the workings of the law in pre-modern England.

The Marxist in Thompson insisted that, of course, the law was the creature of the ruling class, and that at bottom it was one law for the rich and another for the poor; ‘Laws grind the poor, and rich men rule the law,’ ran Oliver Goldsmith’s lapidary line. But the functioning of the law, Thompson stressed, necessarily involved negotiated compromises: because it needed legitimacy, it had to possess a power not primarily coercive but consensual. To sustain hegemonic authority, the law had to be (more or less) accepted by the man in the street – anyone likely to be robbed or mugged and any potential juryman. After all, nobodies as well as nobs had their stuff nicked.

Capitalism had to be protected, and so capital statutes proliferated, rising to over two hundred in the Georgian century, taking in such heinous crimes as destroying fish-ponds and cutting hop-binds. The Waltham Black Act (1723) created fifty new capital offences at a stroke. Yet the aggregate of executions fell dramatically from its early Stuart peak, and law enforcement was quirky. That probably mattered little, Thompson explained, because the essence of law in action lay not in tightening nooses around the maximum number of necks or lashing the greatest number of backs, but in a theatre of terror and mercy, a conspicuous display of authority and justice orchestrated by the Bench. What ultimately counted was the majesty of the law.

Respect for the law as one of the glories unique to the British, along with the Constitution, was an ideology which worked, after a fashion. Of course it had plenty of critics – think of those Hogarth prints of snoring judges. Yet the nation at large could look to it for protection and redress, and take comfort in the fact that it was their peers who served as jurymen (going on trial was ‘putting yourself on your country’). In short, from the hue-and-cry to Tyburn Tree, the law and its enforcement were regarded not just as a series of government fiats and a ruling-class weapon, but as integral to the contested politics of community life.

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