"What major changes occurred in the nature of crime
and in the nature of punishment in the period 1700-1815?"
The study of crime and punishment in eighteenth- and early nineteenth century England - the period associated with the onset of major transformations in economy and society commonly labelled the 'Industrial Revolution' - has, over the last twenty years, attracted an increasing amount of academic interest. Consequently, the material students of this field can draw on has expanded. Yet even though there now exists a substantial body of articles and book-length studies about various aspects of the general theme, there are few definite answers as to how, when, and why the most significant changes in the nature of crime and punishment in the period have taken place. Any student of the field has to steer clear of conclusions drawn too hastily: "[M]any general notions about developments in crime and punishment in the past have compounded oversimplification of the criminal aspects of life with a gross oversimplification of economic developments."[1]
It is tempting to portray crime in the period as an inevitable by-product of industrialisation and urbanisation in an increasingly capitalist society, with a burgeoning economy inextricably paired with exploding levels of crime.[2] It is equally tempting to describe the "bloody code" of punishment in the period as the barbarous relic of mediaeval ages, cunningly converted in the hands of a wealthy ruling elite to a brutal instrument for keeping the growing, unruly masses of the "labouring poor" at bay while the elite themselves ruthlessly followed the pursuit of maximum personal benefit from the ongoing transformations. On closer examination, however, these interpretations retain, at best, limited validity. Quite clearly, "... the all-transforming character of an 'industrial revolution' ... is incapable of bearing the explanatory demands placed on it."[3] There are several aspects, as is to be shown, that do not go along too well with the idea of a "criminal and penal revolution" alongside the industrial one (the concept of which has in itself been challenged by a considerable number of scholars).[4]
Keeping the limitations and difficulties of such an endeavour in mind, I will aim to give a critical overview of the major changes in the nature of crime and punishment between 1700 and the end of the Napoleonic Wars in 1815 - including those that, following the simplistic guidelines of interpretation cited above, could logically be expected, but failed to occur. As a mere listing of changes in a chronological order would seem rather pointless, and is also hardly feasible in a reasonable manner due to the aforementioned complexities, I will also briefly attempt to put events into the context of broader developments in society. The term "nature", as I use it in this essay, involves not only character, but also frequency of and motivation behind crime and punishment. Consequently, statistical attempts to determine changes in the pattern of crime over the whole period as well as short-time fluctuations in crime levels will be taken into account, as will changing levels of violence and the idea of "social crime" as a possible reaction of a conservative populace to the changes imposed on it from the higher ranks of society. With respect to punishment, I will consider the increase in the number of capital offences in the "bloody code" and its implications for the study of eighteenth-century law and society. Finally, I will examine the rise of transportation and its partial replacement by imprisonment in the "modern" sense towards the end of the period.
"[W]as crime in fact increasing in the eighteenth century? Did it become more pervasive, more violent and threatening?"[5] Straightforward enough though the question may seem, scholars have found their quest for an equally straightforward answer hampered by serious obstacles. After all, even the nature of crime in our very own age has proven exceedingly difficult to determine. Varying statistical methods yield varying results, often miraculously suiting the views and political aims of whoever ordered a respective study. Usually, a substantial "dark figure" of unreported crimes threatens to distort statistical results. Furthermore, the population's perception of crime, now and in earlier centuries, need not necessarily be in accord with its actual extent. And finally, the historian of eighteenth-century crime faces additional problems as the evidence he has to rely on is often scarce and consists, apart from contemporary opinions on crime, largely of regionally limited judicial records (in particular the highly formalised indictments, which contained the formal charges laid against the accused at court). Their usefulness for the task at hand has often been doubted.[6] Nevertheless, the authors of statistical studies on the subject have argued the case for using those records, and for applying their results to larger parts of England or even its whole, convincingly enough to justify the inclusion of their, often surprising, findings in this essay. [7]
When looking to pin down major changes in the nature of crime over the period, a reasonable starting point seems to be a brief examination of property crime. After all, "... [M]ost contemporary comment centred on crime against property. When men complained that crime was increasing they had robbery, burglary and theft most often in mind."[8] England between 1700 and 1815 underwent a number of social and economic transformations that could be expected to have pushed the level of property crime to formerly unknown heights, transforming its nature to a far more common and, possibly, more organised threat.[9] There is, for example, the increase of urbanisation: in the seventeenth and, even more so, eighteenth centuries, the share of England's total population living in towns quadrupled. In the second half of the eighteenth century, English towns made for 70 percent of overall European urban growth. New industrial towns such as Liverpool, Manchester, and Birmingham emerged, while the capital London continued to flourish in unchallenged supremacy in terms of sheer size and influence.[10] In the more anonymous urban spaces, traditional methods of preventing crime by controlling possible offenders face-to-face grew less effective.[11] Moreover, "[i]n the cities both motive and opportunity for crime multiplied [due to] the actual circumstances of life in an urban environment, where overcrowding and competition for space, jobs, and amenities went hand in hand with vastly increased aspirations."[12] Another phenomenon with a possible impact on the nature of property crime was the rise of consumerism, or "consumer revolution".[13] According to this concept, rising real wages of men and the added income of women and children in families employed in industry and proto-industry, along with the formation of a large number of well-to-do "professional" and "commercial" families (merchants, artisans, traders, doctors), led to an increasing demand for manufactured goods.[14] This trend was accompanied by a new sense of social competition and - especially in urban areas - met and further reinforced by the emergence of a multitude of specialised, new shops with a formerly unseen range of products.[15] It is mere common sense to assume that, the more affluent people live in an area and the more possessions they amass, the higher a proportion of the less well-off might want to acquire some of the luxuries of the higher ranks for themselves - if need be, by illegal means.[16] To put it bluntly: The more there is to steal in shops, households and purses, the more people may be seduced to do it.
Eighteenth-century contemporaries were well aware of this. The metropolis London in particular was considered by many as plagued by the constant risk for both inhabitants and visitors of the sudden and involuntary loss of their possessions: "One is forced to travel, even at noon," complained Horace Walpole in 1722, "as if one was going to battle."[17] And a German visitor to London could not help but remark that "It appears to me wonderful that the crowds of poor wretches who continuously fill the streets of the metropolis, excited by the luxurious and effeminate life of the great, have not some time or another entered into a general conspiracy to plunder them."[18] The propertied persons' anxiety of crime, however, was not confined to London alone: "Members of Parliament remained convinced throughout the [eighteenth] century that the country was gripped by increasing lawlessness," a belief that was reflected (as is to be shown below) in often draconian measures of punishment.[19] Yet was there really a massive change in the level of property crime over the period? Or were the anxious contemporaries simply suffering from a mild paranoia?
Perhaps surprisingly, statistical evidence suggests that, indeed, they were. In his seminal study of levels of crime in urban and rural parishes of Sussex and Surrey, Beattie comes to the conclusion that "the rate of property crime was not much higher at the end of the eighteenth century than it had been just after the Restoration." Even though there was an undeniable long-term increase in the overall level of property crime throughout the period, he argues, most of it can be explained by a similar increase in population. This appears to hold true for both rural and urban areas.[20] Douglas Hay, in examining property crime in Staffordshire and the Home Circuit between 1758-1802, comes to slightly higher figures, though they still hardly qualify as dramatic: "the rate of indictments per capita increased on trend by only 35 per cent."[21] In comparing the levels of indictments for property crimes in both Essex and Cheshire for the first decade of the eighteenth century with earlier periods, Sharpe even finds that property crime between 1700 and 1709 was far less common than between 1620 and 1629.[22] "This trend makes nonsense of any attempts to make a simplistic connection between the rise of theft and the rise of commerce," and hints at the possibility that the increase in the total number of property offences Beattie's study suggests was, in fact, an increase from a comparatively low starting point.[23]
Rather than a drastic long-term increase in the per-capita rate of crime alongside the transformation towards a more capitalised society, there seem to have been a number of massive short-term fluctuations effected by the beginning and ending of wars, as well as periods of dearth.[24] In the aftermath of wars, the sudden discharge of tens of thousands of men hardened by the rough life in the army came alongside a general increase in unemployment, as workers in naval yards and other war-related industries were sacked. The effect, a rapid increase in crime rates, was felt especially in the ports and London.[25] In rural areas the influence of wars on property crime seems to have been somewhat less grave. Crime there was, at all times, closer connected to dearth induced by high price levels and bad harvests.[26] In both town and country, however, "[t]he greatest pressure on the poor could be expected when dearth and the disaster of demobilization coincided," as after the War of American Independence in 1783.[27]
That a major change in property crime seems not to have taken place (apart from short-term fluctuations due to war and dearth, which need not be characteristic for the eighteenth and early nineteenth centuries only[28]) somewhat defies common sense, as urbanisation and consumerism and the general emergence of capitalism in the modern sense could have been expected to leave their mark on crime statistics. A possible explanation might be that the mechanisms for controlling crime (which are to be discussed below) were quite effective. It is also conceivable that the level of change in the behaviour of the masses due to the industrial revolution and related developments was far less dramatic than some scholars have thought. These two explanations, however, are educated guesses rather than satisfying answers. Certainly, more work in this area would be helpful.[29]
If there was no major change in the levels of property crime, it is still perfectly possible that there was one in the level of violence involved. After all, both violent highway robbery and comparatively harmless pickpocketing count, in statistics, as property crimes. This could conceal a higher proportion of violent crime. According to Beattie, however, this was not the case, at least not in Surrey: "In the rural parishes there appears to have been a decline of violent property crime in the late seventeenth century to a more stable level through the eighteenth. But in the northern urban parishes, the same rise and decline in the first half of the eighteenth century that was apparent in indictments for assault and riot can be seen in those for robbery and burglary."[30] Indictments for assault and riot had reached a peak in urban Surrey in the 1720s and 1730s and declined afterwards. However, since these crimes are very vaguely defined (an assault, for example, could be anything from a master beating his apprentices to attacks on Constables by organised smugglers, with harm to the specific persons reaching from "a scratch to, say, the loss of an eye"), it would be premature to take this as a clear indication of a decline of violence in society.[31] Impressions of contemporaries, though, add weight to Beattie's statistical results. Although they generally tended towards anxiously exaggerating crime levels, there is no shortage of statements that, even though crime was still a threat to society, the level of violence involved had declined after mid-eighteenth century: "One who had been constable at Bow Street since 1780 said that 'with respect to cruelty in robbery, such desperate things as we had formerly, there's not a thing [now] to be compared to.'"[32]
A very clear decline, in both Surrey and Sussex, of indictments for murder, manslaughter, and infanticide over the period fits in neatly with the observations of Beattie and eighteenth-century folk.[33] Although some new police offices had been established by a 1792 act, it is highly unlikely that this was solely to their credit. There is also "a good deal of ... evidence of a growing antipathy towards cruelty and extreme physical violence" in the second half of the eighteenth century, be it the declining popularity of blood sports such as bull-baiting, a growing antipathy towards the slave-trade, or a "heightened sense of domesticity within marriage and more loving relationships between husbands and wives."[34] Furthermore, an effect of Enlightenment thought on attitudes towards violence does not seem implausible, although it must have taken a long time to filter through to the lower, still often illiterate, ranks of society.[35] With respect to all of the factors suggesting a significant decline in the numbers of both violent property crime and violent non-property crime in line with changed attitudes in society, it seems reasonable to assert this as a major change in the nature of crime.
So far I have examined the way in which developments in our period directly or indirectly affecting the lives of the English people influenced the number and type of crimes committed by parts of it. Society, for this aim, I have treated as a dynamic element the development of which was reflected (or, in the case of the relative stability of property crime rates, surprisingly not reflected) in changes of the dependent variable "nature of crime". Worthwhile as though this approach is, however, its validity is limited in that it suggests that rising crime is necessarily the result of an actual alteration in the behaviour of significant parts of the population. This is not always the case. A considerable number of offences on the record were the result of parts of society not changing their ways: The lower ranks frequently acted as a static element conservatively sticking to long-established codes of conduct and modes of behaviour that, due to changes in the criminal law usually prompted by the higher ranks, had suddenly become illegal, or were facing stricter punishment than ever before:[36] "It is hardly surprising, when laws were made and enforced by the propertied classes, that not all of them were acceptable to the moral opinion of the lower orders."[37] To categorise this kind of illegal behaviour not regarded as criminal by large parts of the population, scholars have taken to employ the term "social crime". Its emergence, it has been argued, was very much a phenomenon of the eighteenth- and early nineteenth centuries, a direct result of changed attitudes of the propertied or "landed classes" and the resulting new laws.[38]
Examples for social crime include wood theft (considered by many offenders as mere fuel gathering), "embezzlement" of spare raw materials by proto-industrial "outworkers" (who regarded keeping the scraps as a customary right), the trespassing of newly enclosed lands, or even gleaning in the fields after harvest.[39] Poaching, smuggling, and wrecking, according to John Rule's definition, also fall into this category, in spite of the often considerable amount of violence involved: smugglers in the English rural south were, in the second half of the eighteenth century, able to quickly assemble up to 1000 men, often overpowering any opposition as in an attack in 1747 on a customs warehouse at Poole where a confiscated load of tea had been stored.[40] Wreckers in Cornwall not only plundered abandoned ships, but in at least one instance managed to overpower an armed guard of thirty-five men protecting a wreck.[41] "Poaching activities often ended in armed affrays between poachers and gamekeepers, with the murder and wounding of the latter being frequently a matter for report in the local press."[42]
Although this brutality somewhat contradicts the general decline of violence in society and clearly illustrates that 'social crime' does not necessarily mean 'nice crime,' the poachers' anger at the game laws is understandable (though the attacked gamekeepers were certainly not to blame): under the Game Laws introduced in 1670 only £100 from a freehold estate could buy the right to hunt - by 1750, this sum was between five and ten times the annual income of a labourer. [43] Especially in periods of dearth (which, as shown above, also influenced property crime levels), this denial of the right to hunt for food must have seemed an outright provocation to many in its apparent inequity.[44] Still, it is important not to romanticise the poachers, as there existed organised gangs who took game in periods of both dearth and plenty.[45] Organised poaching still qualifies as "social crime" in that the state's and many people's opinion on the justifiability of the action differed considerably.[46]
This disagreement between what people considered their "natural rights" and the written paragraphs of eighteenth century law was not so palpable in a second category of social crime comprising actions that were considered as less "naturally legitimate" than poaching or smuggling, but still wholly justified by their underlying motivation. Most of these crimes were committed as explicit acts of protest: food rioting as a response to what were considered extortionate prices;[47] the late-eighteenth and early-nineteenth century machine breaking by the Luddites and other groups as an expression of traditional trade consciousness and an attempt to halt the de-skilling of the labour force by the introduction of machinery;[48] the writing of threatening, anonymous letters out of "social, economic, political or community grievance;"[49] or crimes such as arson, sheep stealing or cattle maiming, which were used against individual persons but often "with a broad support of the populace."[50] Although many of these crimes were on the increase in the period (notably the machine breaking, a prerequisite for which obviously was the gradual introduction of an adequate amount of machinery to allow for any acts of destruction on a memorable scale, but also the writing of threatening letters, which was obviously influenced by increasing levels of literacy), their diversity makes it hard to integrate them all into a major trend, and a detailed study would exceed the limits of this essay.
The relevant point for this study has already been made: whereas a great majority of people, especially in rural areas, harboured the same ideas of right and wrong as their ancestors and wanted to carry on accordingly, their actions increasingly interfered with a modified understanding of property in the upper ranks and the extended significance of large-scale trade. [51] The struggle of the state to control these actions, and the resulting popular disapproval, can certainly be regarded as a major crime-related phenomenon that emerged during the period dealt with in this essay. It is now time to take a closer look at exactly how the state's attempts at keeping crime at bay, including property crime, violent offences, and all variations of "social crime," were expressed in changes in the nature of punishment.
On first view, the catalogue of punishments available to early eighteenth-century courts strikes the modern reader as a cruel collection of horrors, reminiscent rather of the mediaeval ages than of the period of blossom in intellectual thought, in philosophy and literature, that has become known as the "Augustan age": While the predominant method of punishment (apart from fines for lesser offences) of our own age, a mostly limited confinement of the criminal in prison, was relatively scarcely used in the early eighteenth century, convicts could face rather unpleasantly sounding measures such as branding, whipping, or the pillory.[52] The latter was a measure of shaming, where the prisoner was, for about an hour, publicly exhibited - usually on a market-place - with hands and heads fixed in a wooden structure (the "stocks"). "When the crowd was indignant at the person(s) pilloried, the prisoners were in grave danger of their lives." Enraged onlookers frequently resorted to giving the culprit some vicious additional punishment with sticks, stones, and other weapons.[53] Apart from this "informal judicial murder by means of the pillory," however, criminals at the time had to face another, even more serious, threat to their lives if they were caught and sentenced: an encounter with the "deadly nevergreen" - the execution at the gallows.[54]
In a development that certainly seems to qualify as a major change in punishment, "the number of capital statutes grew from about 50 to over 200 between the years 1688 and 1820. ... Parliament over the century created one of the bloodiest criminal codes in Europe ... "[55] Alongside the traditional capital offences such as homicide, larceny, highway robbery, or burglary now came wrecking, machine breaking, linen stealing, and food rioting, all of which were counted earlier in this essay as belonging to those "social crimes" large portions of the public were not regarding as criminal. For the sake of public order and the protection of property interests, Parliament often enacted new capital statutes without much debate.[56] It seems that every effort was made "in order to make every kind of theft, malicious damage or rebellion punishable by death."[57] Furthermore, offences directly threatening the flow of capital and, in effect, putting the development of trade at risk, such as forgery of banknotes, bills of exchange, and negotiable papers of all kinds, were invariably punished by hanging.[58] Most verdicts for capital punishment in the period, however, were still cast under old Tudor statutes, not the new ones enacted between 1688 and 1820.[59] The reason for this may lie in their often extremely specific nature: many of the new statutes were tailor-made for very narrowly defined occasions. "Had modern notions of legislative consolidation been applied by eighteenth-century parliaments, the same range of activities could have been rendered subject to the death penalty by means of only a fraction of the number of statutes."[60] It appears that the increase in number of capital statutes alone does not qualify as the major change in the nature of punishment it, on first glance, to be.
Still, there is plenty of evidence for the lawmakers' belief in deterrence by example provided by public executions - although there are also indications that it was not working quite as well as was desired, at least not in the capital: "From the moment the assize judge put on the black cap [as it was the custom to announce the death sentence], to the fatal drop via the long procession from Newgate to Tyburn Hill, the state intended to enact an awful theatre before the lower orders. The problem was that the people turned it into counter theatre and made a celebration of an intended humiliation."[61] By calling the spectacle at the gallows "hanging fair" and other belittling expressions, the crowd expressed their irreverence.[62] Moreover, some dramatically gifted criminals relished the idea of leaving this world in front of a massive audience, and managed to evoke empathy, or even stir an admiring reaction, from the assembled masses.[63] Attempts of the state to make the "hanging match" a more dreaded occasion by granting surgeons and physicians permission to "body-snatch" the convicts' corpses (the science of anatomy had just emerged, and corpses for dissections were in dire need, as moral and religious restrictions of the time made dead bodies exceedingly difficult to get) only lead to tumultuous disorder.[64] "Yet Parliament resisted all reform. Not one capital statute was repealed until 1808, and real progress had to wait until the 1820s and 1830s."[65] Only small modifications to the ceremony of execution were allowed: In 1783, the processions to Tyburn from Newgate, which proved particularly vulnerable to public unrest, were given up. The executions at the new site in Newgate, however, were still public, in spite of protests by Henry Fielding and other contemporary authorities. The tradition of public executions only ended in 1868.[66]
Even more puzzling than the states' persistence on public executions throughout our period despite their disadvantages is a phenomenon widely perceived as "one of the greatest conundrums of early modern English crime:"[67] Even though the number of capital statutes increased, even though contemporary anxieties of crime had not vanished, and even though the need to rigidly control the conduct of the growing population was undiminished, the actual number of executions fell. Hay says that, "[a]t the beginning of the seventeenth century, ... it appears that London and Middlesex saw four times as many executions as 150 years later."[68] Even more impressively, Sharpe finds that "in some areas the number of persons executed for felony in the early eighteenth century may have been about a tenth of that current in the early seventeenth."[69] The reason for this was not an almost total decline of capital offences (property crime, as we have seen, remained merely stable, and the decline in violent crime was not enough to justify the whole extent of the fall in executions). Rather more, it was an increased frequency of acquittals, discharges,[70] pardons, and of resorting to other forms of punishment, which led to these figures.[71]
The apparent laxity of the courts was subject to heavy criticism by Henry Fielding and like-minded peers: "If therefore the terror of this example is to be removed (as it certainly is by frequent pardons) the design of the law is rendered totally ineffectual ..."[72] Nevertheless, the decline in actual executions for crimes theoretically subject to capital punishment did make a lot more sense than it might seem. It can be regarded as a sign for a far more subtle handling of the death penalty than the seemingly mindless brutality the capital statutes imply in their black-and-white rigidity. To achieve the degree of deterrence considered necessary (by those who still believed in the deterrent value of executions), it was not regarded as important to slay culprits in droves. Already, there were plenty of indications that the law was considered too strict. Juries not infrequently "consciously undervalued the goods in question" to move a crime from the category of capital offences like grand larceny to those punished less strictly, such as petty larceny. This was not only because of disgust of violence, or to spare themselves to have their consciences laden with the guilt of a man's death, or because of agitation of the convict and his friends:[73] Sometimes, it was considered financially more sane to let a convict with a large family live, as otherwise the parish community had to support them after the decease of the head of family.[74] Another idea that spoke against more frequent hangings was that excessive violence could well be expected to evoke overwhelming counter-reaction: "If London rioted at Tyburn, how much worse would disorder be if the executions were four times as numerous?"[75]
Yet perhaps most importantly, Hay argues that mercy (alongside majesty, expressed in the theatrical rituals of the courts and gallows, and justice, which underlined the equality of the law for all the population) was a key element in allowing the rule of the few over the many "without a police force and without a large army."[76] Not only did it, according to Hay, lend the rulers and their courts an air of benevolence, but also it increased the dependence of the population on the gentlemen of the upper ranks, whose well-meaning intercession could, in the event of a conviction, decide between life or death for the convict. By having to beg for mercy, by knowing one's life at the disposal of the members of the landed elite (or by at least bearing the possibility that this could happen in mind), the poor had to accept their subordinate position.[77] That crime levels of the time apparently were lower than could be expected, and that the occasional popular unrest did not lead to large-scale revolution, could well be taken as proof that the law really worked along the lines of Hay's explanation.
Yet even though the alternate measures of execution and pardon seemed to work for many cases, the need for an additional punishment which was sufficiently strict, but not as harsh as the death penalty, was felt urgently. There were many offences serious enough to make the idea of letting the culprit off the hook, back into his former life (which, for many criminals, simply meant committing more crimes) seem unreasonable. The alternative punishments of publicly pillorying or whipping law-breakers, though, were less and less effective: In an increasingly anonymous society, the very concept of shaming gradually ceased to function. If the offender proved popular with the people, the pillory could evoke quite the reverse of the desired effect, leading to celebrations of the delinquent and attempts to free him.[78] The other alternative, imprisonment, still was, through most of the period, regarded with contempt (the building and maintaining of gaols was costly, prisons were feared as symbols of excessive state power, and the belief was widespread that "imprisonment was as likely to breed criminals as ... to cure them").[79] Lawmakers were very concerned with the dissatisfactory nature of the available instruments of punishment, and sought for an alternative. They found it in a variant of the mediaeval procedure of banishment. Its widespread use was made possible by the 1718 Transportation Act.
Instead of sending them to the gallows, this act allowed courts to transport clergyable felons to America for a seven-year period, and non-clergyable felons for fourteen years.[80] In addition to this, offenders who had received a capital sentence could, under certain circumstances, have that sentence altered to lifelong transportation (which often seemed a better alternative to granting them full pardon).[81] Transportation allowed to "fill the sanction gap between whippings and hangings,"[82] and to get rid of "bad subjects, [who] might essentially injure society," as William Thompson wrote in 1737. "[U]nlike most non-capital punishments, transportation did not return criminals to the social mainstream."[83] The idea of transportation to the colonies in America or the West Indies was not entirely new. As short as three years before passing the transportation act, for example, several hundred Jacobean rebels were being disposed of by sending them to America. The novelty of the Transportation Act lay in making the punishment available for a larger number of offences (before, its use had predominantly been to get rid of rebellious elements of society such as the Jacobites), establishing a clear set of rules for its application - including the fixed periods of time for which culprits were banished - and by providing an efficient, well-organised system for shipping offenders to America.
Contractors were paid three pounds for every convict they brought to the shores of the colonies.[84] "Never before had authority been prepared to spend such large amounts of money or to become so actively involved in efforts to curb crime."[85] This clearly shows the weight government attributed to the new instrument of punishment - a view that was shared by the courts, as statistical figures illustrate. Between 1718 and the War of American Independence in 1775 (which disrupted the system of transportation, as is to be shown below), more than 30.000 convicts were sent from England to America, possibly as many as 36.000.[86] Just as population and overall crime levels, transportation figures rose over time. A further increase might have been stimulated by the passing of additional acts between 1720 and 1765 which extended the reach of transportation beyond felony, and established it as a penalty for crimes like poaching and perjury.[87] "Britains foremost punishment after 1718, transportation represented a major innovation in the administration of justice."[88] The effects of the Transportation Act were possibly more far-reaching than of any other piece of penal legislation between 1700 and 1815. The heavy use courts made of it was clearly a major change in the nature of punishment.[89]
For almost sixty years, transportation was considered indispensable (although there were contemporary voices demanding a punishment with more deterrent value, even more so during times of high crime levels, such as 1750).[90] This made the consequences even more grave when, in 1775, transportation was brought to a sudden halt. Even before, the colonies had complained about the often rough lot the English ships brought to their shores (although some Americans profited by employing English convicts as cheap labour force). In a 1723 act, for example, Virginia tried to avoid having to receive convicts by establishing a complicated set of rules that, effectively, made it impossible for England to send them. The act was disallowed by the English cabinet within two months. American revenge for the years of having to receive tens of thousands of English (and other British) criminals came with the outbreak of the American War of Independence: all of a sudden, American ports refused the transportation vessels entry and forced them to return their rowdy load to where it came from. As a logical consequence, the small available capacity in English gaols was rapidly filled to the point of severe overcrowding. In a hurried response to the mounting problem of accommodating England's convicts, Parliament in the spring of 1776 passed an act that allowed them to be, at night, confined aboard former warships, the "Hulks", whereas, at daytime, they were being forced to perform various forms of hard labour in and around the port.[91]
Not only did the sight of Englishmen, though criminal ones, forced to perform "slave labour" almost directly in the eye of the public provoke protests, but the Hulks also had other disadvantages: There was an enormous risk of prisoners managing to escape or to engage in rebellion. Furthermore, the crowded quarters aboard the ships bred not only unrest, but also disease (just as the crowded prisons ashore). One in four prisoners aboard the hulks died during the first three years of the practice.[92] In 1779 Parliament reacted to those problems, although somewhat half-heartedly: the minimum sentence was reduced from seven years to one year, and the "Penitentiary Act" declared that additional "Penitentiary Houses" were to be built near London. These were never realised, though, as the responsible commissioners could not agree on a site.[93] At any rate the general belief was that the crisis would only be short-lived, and that, after the war, transportation could be re-established.
After the English troops had to admit defeat in 1783, this hope had to be abandoned - which was made all the more serious as the release of the troops at the end of the war, coinciding with high prices, had led to one of the worst crime waves of the century. To fight this crime epidemic solely by increasing use of the death penalty proved not efficacious enough, and could only be driven to a certain level: "Not even hardened public officials believed that hundreds of men and women could routinely be sent to the gallows, if only because courts would never tolerate such a loss of life."[94] The sixty years of transportation "created a penal system that could never again operate without a centrally dominant secondary punishment."[95] An attempt to revive transportation to the USA in spite of the defeat proved disastrous.[96] The idea of transporting culprits to Africa was abandoned for fear of armed conflicts between natives and prisoners. Only transportation to Australia, explored by Cook in 1770, showed some promise, in spite of much higher costs. From September 1786 onwards, there was a steady flow of transportation to the far-away shores of Botany Bay, which did not end until eighty years later, after 150.000 felons had been to these parts. [97]
The re-installation of transportation did not mean a full return to the pre-1775 status quo. The discussion during the time of crisis between 1775 and the mid-1780s had given those in favour of imprisonment - led by prominent theorists such as the prison reformer John Howard - an opportunity to voice their concerns and to promote their ideas of a possible rehabilitation of criminals to create "a punishment that would attack the root causes of crime."[98] The implications of families losing their fathers to transportation (the cost of maintenance and possible increase of female and juvenile crime) were also increasingly recognised. Furthermore, "population was increasingly seen as an index of a nation's greatness," so that the exodus of able-bodied, though maybe crooked, men and women, that transportation involved, was increasingly criticised.[99] In 1791 Parliament issued the General Prisons Act to encourage the wider application of the penitentiary system to counter crime. Following the plans of Howard and other prison reformers, new, larger gaols were built. They differed from the old ones in that they had prison cells in the modern sense rather than an open-plan layout.[100] This allowed to separate offenders by the severity of their crimes, so that petty offenders were no longer negatively influenced by hardened criminals. Increasingly prisoners were held in solitary confinement, which was considered to be more morally efficacious.[101] Prisoners were treated in a less brutal way, and improvements in hygiene reduced the likelihood of epidemics.[102]
Interestingly enough, the increasing use of imprisonment in the modern sense, in addition to transportation, often meant more serious consequences for convicts by the end of the century:[103] "A smaller proportion of convicted offenders were hanged ... But in property crimes convicted offenders were being imprisoned or transported by the end of the eighteenth century, when they would have been branded or whipped and released a hundred years earlier."[104] From 1808 on, the gradual decline in the belief in the deterrent value of capital punishment, and the desire to fight crime by other means, became manifest in the first capital statutes being repealed. This was continued in 1810 and onwards, though capital punishment was not fully abandoned. The end of the Napoleonic Wars in 1815 then gave the final impact needed for a full reform. "The rate of prosecutions rose to levels never before experienced and made increasingly irresistible the argument that if propertied men would not prosecute thieves because they objected to capital punishment, then the law was preventing society from defending itself." The results of the inquiries of Parliamentary commissions led to the repeal of dozens of capital statues in 1823 and 1827 and the abolition of the benefit of the clergy.[105]
Quite clearly, the end of the period discussed in this essay saw a system of punishment that had undergone massive changes, and that resembled penal measures of our own times much more closely than it had 115 years before. Its nature had evolved from a heavy reliance on physically attacking the bodies of convicts towards a more sophisticated and less brutal approach which attempted to alter their minds. This certainly seems a lot less barbarous, but does not mean punishment had become less strict. If anything, a higher proportion of criminals were actually punished.[106] Although it is perfectly reasonable to assume that "crime acted over this period as the motor of change [in punishment and the law]," the alterations in its nature are far more difficult to pin down.[107] The declining amount of violence involved seems to parallel changing attitudes of the English people, whereas the level of property crime surprisingly seems not to mirror developments in society. Then again, the emergence of social crime can be taken as an example for the consequences of changing times and a changing society on law and the resulting criminal conflicts. Since recent research on crime and punishment in the eighteenth and early nineteenth century has, first and foremost, succeeded in uncovering the enormous complexity of the field, the need for additional work has become more evident than ever. New studies of crime rates in other regions than those examined so far count amongst the most urgently needed. In effect, the study of crime and punishment and their nature can lead to "a true understanding of the way eighteenth-century society was governed," so there is a worthy purpose to all this work.[108] The "Crime Wave" in eighteenth- and early nineteenth century historiography will certainly not ebb in the near future.
[word count without footnotes: 6873]
Baker, J.H., "Criminal Courts and the Procedure at Common Law 1550-1800," in Cockburn, J.S. (ed.), Crime in England 1550-1800 (London: Methuen & Co., 1977), pp. 15-48.
Beattie, J.M., Crime and the Courts in England 1660-1800 (Princeton, New Jersey: Princeton University Press, 1986).
Beattie, J.M., "The Pattern of Crime in England 1660-1800," in Past and Present, No. 62 (1974), pp. 47-95.
Borsay, Peter, "The English urban renaissance: the development of provincial urban culture 1680-1760," in Social History No.5 (May 1977), pp. 581-603.
Coleridge, Samuel, "The Dungeon," in Coleridge, Samuel; Wordsworth, William: Lyrical Ballads 1798. Edited by W.J.B. Owen. 2nd edition (Oxford: University Press, 1969), pp. 80-1.
Daunton, M. J., "Towns and Economic Growth in Eighteenth-Century England," in Abrams, Philip, Wrigley, E. A. (eds.), Towns in Societies. Essays in Economic History and Historical Sociology (London: Cambridge University Press, 1978), pp. 245-277.
Ekirch, A. Roger, Bound for America. The Transportation of British Convicts to the Colonies, 1718-1775 (Oxford: Clarendon Press, 1990).
Fielding, Henry, Joseph Andrews. Edited by R.F. Brissenden (London: Penguin Books, 1977).
Hay, Douglas, "Poaching and the Game Laws in Cannock Case," in Hay, Douglas; Linebaugh, Peter; Rule, John G. (eds.), Albion's Fatal Tree (Harmondsworth: Penguin Books Ltd., 1977), pp. 189-253.
Hay, Douglas, "Property, Authority and the Criminal Law," in Hay, Douglas; Linebaugh, Peter; Rule, John G. (eds.), Albion's Fatal Tree (Harmondsworth: Penguin Books Ltd, 1977), pp. 17-64.
Hay, Douglas, "War, Dearth and Theft in the Eighteenth Century: The Record of the English Courts," in Past and Present, No. 95 (1982), pp. 117-160.
Hudson, Pat, The Industrial Revolution (London: Arnold, 1992).
Innes, Joanna; Styles, John, "The Crime Wave: Recent Writing on Crime and Criminal Justice in Eighteenth-Century England," in Journal of British Studies, No. 25 (1986), pp. 380-435.
Linebaugh, Peter, "The Tyburn Riot Against the Surgeons," in Hay, Douglas; Linebaugh, Peter; Rule, John G (eds.), Albion's Fatal Tree (Harmondsworth: Penguin Books Ltd, 1977), pp. 65-118.
Mathias, Peter, The First Industrial Nation. An Economic History of Britain 1700-1914, 2nd edn. (London: Routledge, 1987).
McGowen, Randall, "The Body and Punishment in Eighteenth-Century England," in Journal of Modern History, No. 59 (1987), pp. 651-679.
McKendrick, Neil, "Home Demand and Economic Growth: A New View of the Role of Women and Children in the Industrial Revolution," in Neil McKendrick (ed.), Historical Perspectives: Studies in English Thought and Society. In Memory of J.H. Plumb (London: Europa Publications, 1974), pp. 152-210.
McLynn, Frank, Crime and Punishment in Eighteenth-Century England (London: Routledge, 1989).
Royle, Edward, Modern Britain. A Social History 1750-1985 (London: Arnold, 1987).
Rule, John G., Albion's People. English Society 1714-1815 (London: Longman, 1992).
Rule, John G., "Social Crime in the Rural South in the Eighteenth and Early Nineteenth Centuries," in Southern History (1989), pp. 135-153.
Sharpe, J.A., Crime in Early Modern England 1550-1750 (London: Longman, 1984).
Thompson, E.P., "The Crime of Anonymity," in Albion's Fatal Tree (Harmondsworth: Penguin Books Ltd, 1977), pp. 255-308.
Wrigley, E. A., "A Simple Model of London's Importance in Changing English Society and Economy 1650-1750," in Past and Present, No. 37 (1967), pp. 44-70.
[1] J.A. Sharpe, Crime in Early Modern England 1550-1750 (London: Longman, 1984), pp. 168-9.
[2] As exemplary for this view, Sharpe cites Lenman and Parker's conclusions about "The State, the Community and the Criminal Law in early modern Europe," in Crime and the Law since 1500, eds. Gatrell, Lenman and Parker (London: Europa Publications, 1980), p. 80. - Sharpe, p. 59.
[3] Joanna Innes, John Styles, "The Crime Wave: Recent Writing on Crime and Criminal Justice in Eighteenth-Century England," in Journal of British Studies, No. 25 (1986), p 387.
[4] For a compact definition of the term 'industrial revolution' and its implications, as well as an evaluation of its validity, see Peter Mathias, The First Industrial Nation. An Economic History of Britain 1700-1914. 2nd edn. (London: Routledge, 1987), esp. pp. 1-19. Equally useful is Pat Hudson, The Industrial Revolution (London: Arnold, 1992), pp. 9-35.
[5] J.M. Beattie, "The Pattern of Crime in England 1660-1800," in Past and Present, No. 62 (1974), p. 48. In the following referenced as Beattie, Pattern.
[6] As Sharpe and other scholars argue, "[q]uantification of judicial records tells us about changes in control, about changes in the system of the criminal law and its enforcement, but it can tell us little of value about changes in the levels of crime itself, or the real levels of illicit behaviour, an indeterminate sample of which is brought before the courts." - Sharpe, p. 43.
[7] Hay convincingly argues that "[i]t may in fact be the case that the records of eighteenth-century crime in particular are more accurate reflections of changes in the behaviour of those prosecuted than are recent criminal statistics." He points out that criminal records, other than many current statistics on crime, were not the by-product of political campaigns. They "were not drawn up to support arguments," and could hence be less biased. In addition to this, Hay argues that "most prosecutions for theft were privately initiated." Since there was no real police force reinforcing the law, "[t]heft prosecutions in the eighteenth century ... were not affected by 'control' in the modern sense." Douglas Hay, "War, Dearth and Theft in the Eighteenth Century: The Record of the English Courts," in Past and Present, No. 95 (1982), p. 120. In the following referenced as Hay, War. - Quotes taken from Sharpes' summing up of Hay's arguments - Sharpe, pp. 43-4. For more reflections on the usefulness of criminal records for determining the level of crime, see Beattie, Pattern, esp. pp. 52-58.
[8] Beattie, Pattern, p. 73.
[9] Characters like the "greatest operator on the eighteenth-century criminal scene," Jonathan Wild (who was hanged in 1725) showed a considerable amount of criminal energy and organisation. Wild made a fortune by first stealing peoples' belongings, and then offering to return them through his "Office for the Recovery of Lost and Stolen Property" for substantial payments. However, criminal careers such as Wild's were a rare exception. Even though contemporaries often thought to the contrary, there was no separate "criminal class" in the eighteenth century. - Rule, Albion, p. 230.
[10] Hudson, pp. 150-1; M.J. Daunton, "Towns and Economic Growth in Eighteenth-Century England," in Abrams, Philip; Wrigley, E. A. (eds.), Towns in Societies. Essays in Economic History and Historical Sociology (London: Cambridge University Press, 1978),pp. 246-7.
[11] A. Roger Ekirch, Bound for America. The Transportation of British Convicts to the Colonies, 1718-1775 (Oxford: Clarendon Press, 1990), pp. 13-14: "As centres of England's commercial revolution, London, Bristol, Liverpool, and other cities afforded rich fields for thieves. Besides offering them an anonymous setting in which to commit their crimes, urban thoroughfares abounded with new stores and warehouses, attracting scores of burglars and shop-lifters. The extension of commerce into the countryside and increased traffic on roads and waterways furnished added targets, especially for armed robbers." - For a brief discussion of the validity of the "consumer revolution" concept, see also footnote 14.
[12] Frank McLynn, Crime and Punishment in Eighteenth-Century England (London: Routledge, 1989), p. 300. It has to be said, though, that McLynn's account of "Crime and Social Change" in the period suffers from several of the very generalisations and oversimplifications on the influence of the industrial revolution on crime Sharpe and other scholars have criticised. If read with the necessary amount of critical attention, however, his text still makes for worthwhile reading as it compiles many ideas on the topic in one compact chapter. For further reflections on urban influence on crime statistics, see Beattie, Pattern, p. 92-3.
[13] Neil McKendrick, "Home Demand and Economic Growth: A New View of the Role of Women and Children in the Industrial Revolution," in Neil McKendrick (ed.), Historical Perspectives: Studies in English Thought and Society. In Memory of J.H. Plumb (London: Europa Publications, 1974), p. 171.
[14] According to McKendrick, "the growing prosperity that could be enjoyed by some sections of the working classes [was] a result of child and female labour and the boost it could give to the earnings of the family unit ... The new patterns of consumption played an important part in boosting home demand and fuelling economic growth." He cites Eversley's finding that, between 1750 and 1780, there emerged around 150.000 new households with an income of more than £50 a year, but ventures to claim that, in his view, "the market for mass consumer goods reached [beyond these 150.000 households,] as far as the skilled factory worker and the domestic servant class." (McKendrick, pp. 169-172). This has been challenged: critics claim that the statistics supporting it are weak, that important factors such as the diminishing effects of indirect taxation (excises) on the purses of the population have been neglected, and that the shift in proportion of household budgets from food to other goods has been exaggerated: "The waged proletariat entered the market from necessity and overwhelmingly for food." - John Rule, Albion's People. English Society 1714-1815 (London: Longman, 1992), pp. 21-25. In the following referenced as Rule, Albion. Nevertheless, even though the role of the labourers in extended expenditure for consumer goods in the eighteenth century and the suitability of the term "consumer revolution" are unclear, other evidence such as the rising number of shops (in 1770, there were more shops in England than today) still shows that there was more money around, which was being spent on an increasing number of goods circulating - which is more than enough to assume an effect on property crime.
[15] The belief that "fine feathers make fine birds" made the rich and prosperous spend more and more money on clothing of high quality and other symbols of their status, which sparked their social inferiors' desire to "ape their betters" and also spend more, which in turn caused another increase in expenditure by the better-off to beat the competition from below. - Peter Borsay; The English urban renaissance: the development of provincial urban culture 1680-1760," in Social History No.5 (May 1977), pp. 593-4; E.A. Wrigley, "A Simple Model of London's Importance in Changing English Society and Economy 1650-1750," in Past and Present, No. 37 (1967), p. 67ff; Daunton, pp. 253-4; Hudson, pp. 156, 160; Beattie, Pattern, p. 92-3; McKendrick, p. 195.
[16] Rule, Albion, p. 228.
[17] Horace Walpole (1722), quoted in Ekirch, p. 12.
[18] Johann Wilhelm von Archenholz, quoted in Ekirch, p. 14. The ideological implications of Archenholz's using the word "effeminate", would surely be worthwhile to inspect. - Ekirch also points out that contemporary anxieties were increasingly fuelled by "the greater publicity accorded to crime by the country's expanding newspaper trade." - Ekirch, p. 11.
[19] Beattie, Pattern, p. 48. This quote does not only refer to property crime, but also to breaches of the law such as smuggling, wrecking, and poaching, all of which will be examined below, as well as the methods of punishment parliament devised against the "lawlessness".
[20] Beattie, Pattern, p. 74. Contemporary anxieties and the aforementioned reflections on the influence of urbanisation and consumerism on crime, however, are not completely invalidated in that it appears that, "if there is little suggestion in the indictment rates that crime against property intensified seriously in the city in the eighteenth century, the level of such crime always appears to have been higher in the more commercialised agricultural county of Surrey than in Sussex, and higher in the urban as against the rural parishes of Surrey." - Beattie, Pattern, p. 81.
[21] Hay, War, pp. 122-4.
[22] Sharpe, pp. 58-9, 177.
[23] Sharpe, p. 176. Naturally, contemporaries of the period could not possibly have been aware of this. Their subjective feeling of security or insecurity was not influenced by later findings that they might, statistically, have been in less danger of being robbed than their ancestors. Sharpe claims, however, that complaints about crime had, in the eighteenth century, taken on a less apocalyptic tone than in earlier times: "In the 1750s that working justice Henry Fielding thought that rising crime would make it impossible for gentlemen to ride safely in London In the 1590s two other working justices, Edward Hext and William Lambarde, were convinced that both the society and the moral universe they lived in were on the point of collapse." - Sharpe, p. 184. It is not clear whether the difference in tone of these statements really is as grave and meaningful as Sharpe would have us believe. Without a doubt, though, Fielding's and other people's convictions of crime threatening not only London, but the whole country, were still influential enough to force strict legal measures to be taken against crime: "... What [Fielding and his] contemporaries thought was true was crucially important to the way they responded to increases in offences, and particularly helps to explain why crime and public order were to be such major issues in the century after 1750 ... What men thought caused property offences bore directly on their views of the criminal law and the way it was being administered." - J.M. Beattie, Crime and the Courts in England 1660-1800 (Princeton, New Jersey: Princeton University Press, 1986), p. 264. In the following referenced as Beattie, Crime.
[24] "After the end of hostilities in the War of the Austrian succession (which ended in 1748), the Seven Years' War (1755 or 1756 to 1763) and the war with the American colonies (1775-83), an immediate and large increase in committals for theft followed, an increase that was usually sustained until the year in which warfare was resumed." Hay, War, pp. 125-6.
[25] Beattie, Pattern, p. 94-5. "In 1749 roughly 70.000 men had been discharged (1 per cent [of the total population]), in 1763 over 200.000 (3 per cent), and in 1783 about 130.000 (2 per cent)." - Hay, War, p. 139. Hay comes to the conclusion that less serious (non-capital) offences were more connected to price levels, whereas felonies involving a higher degree of violence, such as highway robbery or horse theft, were more influenced by the end of wars. (For a summary of Hay's arguments in this respect, see Rule, Albion, pp. 233-4. ) It appears that, as soon as the rougher elements of society were sent away to far-away theatres of conflict, there remained a proportion of the poor who only resorted to crime if they really had to: "[T]hefts and prices are strongly correlated in wartime (although hardly at all in the periods of peace)." - Hay, War, p. 134. Although this could be read as a statement on the armies of the time as consisting of nothing but hardened criminals, it also needs to be noted that the press gangs working for the military had the tendency to recruit unemployed and unmarried men first, a clientele of people who were at a higher risk of committing crime at any rate. Much in the same way, a not insignificant number of the unemployed chose to sign on to the military by their own free will - Hay, War, p. 141.
[26] In both war and peace, "a large number of people were close enough to the subsistence line for changes in prices to register immediately in their fortunes and for them to turn to theft to fill the gap." - Beattie, Pattern, p. 92. Beattie shows the correlation of property crime and price levels by comparing the level of both rural and urban indictments for crimes against property with the Schumpeter-Gilboy price index. McLynn has it (as often) fairly more simply than Hay and Beattie: "There were very serious periods of dearth in 1756-7, 1766-8, 1772-4, 1782-4, 1795-6, and 1800-1. All of these periods of high prices saw a clear increase in property crime, especially theft, and violent rioting." Straightforward as though this may seem, McLynn's statement is imprecise in that he does not differentiate between periods of dearth around the onset of wars (1756-7), during wars (1795-6 and 1800-1), around the end of wars (1782-4), and in peacetime (1766-8, 1772-4). The influence of war, in combination with dearth, on crime levels has been examined by both Hay and Beattie and can hardly be denied. - McLynn, p. 306.
[27] Hay, War, p. 145.
[28] The influence of war on crime, of course, must have changed after the introduction of a standing army.
[29] Though the evidence apparently is hard to get, a study of crime levels in the new industrial towns like Manchester, Liverpool, and Birmingham could gain valuable insights.
[30] Beattie, Pattern, p. 84.
[31] Beattie, Pattern, pp. 62-63.
[32] Beattie, Crime, p. 138.
[33] Beattie, Pattern, p. 61. Sharpe goes even further than Beattie in terms of both the territory for and the period of the decline in manslaughter and murder: "... It does seem that there was a steady diminution in homicidal violence between the thirteenth and the mid twentieth centuries." - Sharpe, p. 175.
[34] Beattie, Pattern, pp. 135-6.
[35] McLynn, pp. 307-8.
[36] "The legal definition of what constitutes criminal action changes over time within any society, and can differ at the same moment from one society to another. As historians we can only understand changes in the nature and patterns of criminal behaviour if we are aware of changes in the criminal law itself." - John G. Rule, "Social Crime in the Rural South in the Eighteenth and Early Nineteenth Centuries," in Southern History (1989), p. 135. In the following referenced as Rule, Social Crime.
[37] Rule, Albion, p. 234.
[38] Rule, Social Crime, p. 134.
[39] Rule, Albion, p. 234; Sharpe, pp. 123-4. For the crime of embezzlement, see also McLynn, pp. 301-2: As he points out, embezzlement was considered as so harmful by employers that they founded anti-embezzlement associations and employed inspectors who had the power to enter workers' houses to search for stolen materials. "In the woollen trade alone, eleven new embezzlement statutes were passed from 1725 to 1800, more than in the whole previous history of the industry." Clearly, this was a result of new entrepreneurial attitudes of the time.
[40] The guilty "Hawkenhurst Gang", however, employed violence so excessively that a citizens' vigilante band was formed against them - as yet the only recorded instance found of such a thing against smugglers. - Rule, Social Crime, pp. 147-8.
[41] Both wrecking and smuggling interfered with the increase in trade associated with the industrial revolution. Understandably, the government would not easily let go of the opportunity of increased duties on goods, and businessmen would not want to have the already inconvenient losses through occasional wreckage incremented by losing all their wares to wreckers. The smugglers and wreckers, on the other hand, greeted this increase in commerce and transport as a welcome opportunity to expand what they considered "their trade", and defended their "business" with the more fervour the more was at risk.
[42] Rule, Social Crime, p. 149. Of course, statements like this remind us that the decline of violence we stated earlier did not mean that it had vanished.
[43] Douglas Hay, "Poaching and the Game Laws in Cannock Case," in Hay, Douglas; Linebaugh, Peter; Rule, John G. (eds.), Albion's Fatal Tree (Harmondsworth: Penguin Books Ltd, 1977), p. 189. In the following referenced as Hay, Poaching.
[44] George Crabbe tried to capture this feeling of injustice in a poem: "The farmer your sport shall supply / Your beagles his fences shall break / But 'touch not and taste not', you cry, / The Law with its talons awake." - Quoted in Rule, Social Crime, pp. 140-1.
[45] Hay, Poaching, pp. 203-5; Sharpe, pp. 129-131.
[46] For justifying their actions, poachers also cited religion: "the poor ... reminded themselves that Genesis said the animals were made for man, and poached with passionate determination and courage." - Hay, Poaching, p. 191.
[47] Sharpe, pp. 131-9; Rule, Albion, pp. 196-201; Douglas Hay, Property, Authority and the Criminal Law," in Hay, Douglas; Linebaugh, Peter; Rule, John G. (eds.), Albion's Fatal Tree (Harmondsworth: Penguin Books Ltd, 1977), p. 21 (in the following referenced as Hay, Property): "The food riot was an organized and often highly disciplined popular protest against the growing national and international market in foodstuffs, a market which alarmed the poor by moving grain from their parishes when it could compel a higher price elsewhere ..."
[48] Rule, Albion, pp. 213-220.
[49] E.P. Thompson, "The Crime of Anonymity," in Hay, Douglas; Linebaugh, Peter; Rule, John G. (eds.), Albion's Fatal Tree (Harmondsworth: Penguin Books Ltd, 1977), p. 258. There was a connection with food- and other riots, as they were often preceded by anonymous letters "sent to those suspected of hoarding or enhancing prices ..." - Rule, Albion, p. 200. These anonymous letters must be sharply distinguished from ordinary blackmail, wherein it was attempted to extort money from persons under threat of revealing, for example, sexual deviancy such as homosexuality or adultery, which would lead to criminal prosecution.. Blackmailing was not approved of by the public, but regularly infused anger. - McLynn, p. 283.
[50] Rule, Social Crime, p. 139; Hay, Property, p. 59.
[51] The unshaken belief of many "social criminals" in their innocence is exemplified by the turnpike rioter from Gloucestershire who, while awaiting execution, claimed that "he had never committed any theft nor murder nor done any crime in his life ..." - Quoted in Sharpe, p. 123.
[52] It needs to be noted, though, that branding was often rather a sign of mercy than an actual punishment: referring to a law formalised in the reign of Henry VII, but dating back to the high middle ages, convicted felons could claim to be members of the clergy, thus being liable to be tried in ecclesiastical courts, rather than the royal ones. Before being let off, they were branded in the palm of the left hand in order to discourage recidivism. For being liable to "benefit of the clergy", the ability to read sufficed as proof. Yet, "unless we are to revise most of our ideas on popular literacy in early modern England, it is obvious that the reading test was not being applied with any great rigour. Benefit of the clergy was a nonsense, a proposition best supported by legislation of 1623 which extended the right to claim clergy to women in an age when the ordination of women as priests would have been unthinkable." - Sharpe, p. 67. See also Ekirch, p. 16.
[53] McLynn, p. 282-3. This "informal judicial murder" took place when the crowd proved too strong to be controlled by the authorities, or when the authorities did not really try to exert control on the crowd. Offences which could lead to such a strong reaction were, for example, sexual crimes against children, but also homosexuality. The use of the pillory did not fade entirely towards the end of the eighteenth century, but it was employed more rarely, thus fitting the decline in violence stated earlier. See also Beattie, Crime, pp. 133-4.
[54] Peter Linebaugh, "The Tyburn Riot Against the Surgeons," in Hay, Douglas; Linebaugh, Peter; Rule, John G (eds.), Albion's Fatal Tree (Harmondsworth: Penguin Books Ltd, 1977), p. 66.
[55] Hay, Property, pp. 18-9.
[56] Hay, Property, pp. 20-1. Contradicting Hay's opinion are Innes and Styles, who point out that a third of bills proposed to parliament failed in the eighteenth century (though certainly not all of them were proposals for new capital statutes), and that there was a higher amount of parliamentary debate than Hay has it. Since the manuscript records of the House of Commons were destroyed, however, Innes and Styles argue their case for a parliament lively debating new capital statues by referring to the higher frequency and regularity of meetings after 1688 - an argument which, oddly enough, seems to imply that, as soon as they had been given increased debating time, members of parliament inevitably resorted to filling it by proposing and heatedly debating new capital statutes. Other evidence, such as contemporary quotes worrying about the passing of certain acts, is more convincing, though it does not invalidate Hay's remarks on the role of the Parliament. - Innes and Styles, pp. 423; 427-9.
[57] Hay, Property, p. 57.
[58] In a kind of capitalist analogy to the old idea of the "Body Politic", "Banks were credited with souls, and the circulation of gold likened to that of blood." - Hay, p. 20. See also Hay, Property, p. 56.
[59] Beattie, Crime, pp. 513-4.
[60] There were, for example, separate capital statutes against "destroying Fulham Bridge ([enacted in] 1735), destroying Westminster Bridge (1736), embezzling notes by servants of the bank of England (1742), and embezzling the effects of the South Sea Company by its officers and servants (1751)." - Innes and Styles, pp. 424-5.
[61] Rule, Albion, p. 239.
[62] Linebaugh, p. 66.
[63] This occasioned Henry Fielding to speak out, although unsuccessfully, against public executions: "The day appointed by law for the thief's shame is the day of glory in his own opinion. His procession to Tyburn and his last moments there, are all triumphant; attended with the compassion of the meek, and tender-hearted, and with the applause, admiration, and envy of all the bold and hardened." - Henry Fielding quoted in Rule, Albion, p. 238.
[64] Linebaugh, pp. 69 ff.
[65] Hay, Property, p. 24.
[66] There are, however, indications that public hangings were more efficacious in the less anonymous rural areas.
[67] Sharpe, p. 182.
[68] Hay, Property, p. 22.
[69] Sharpe, p. 182.
[70] Sharpe pp. 65-6.
[71] Rule, Albion, p. 237: "In London and Middlesex between 1749 and 1799, in twenty-four of the fifty-one years, at least half of the capitally convicted were reprieved. This was true of twenty-three of the thirty years 1770 to 1799." An exception were periods during which, or directly before which, crime rates were or had been exceptionally high, such as in 1752.
[72] Henry Fielding quoted in Rule, Albion, p. 237.
[73] Rule, Albion, p. 237.
[74] McLynn, p. 279, For a rather bizarre method of saving a convict's life, see Sharpe, p. 68: "At York, and possibly other assize towns, it was apparently customary in the mid-seventeenth century to reprieve a convicted felon on the condition that he acted as a hangman."
[75] Hay, Property, p. 57.
[76] Hay, Property, p. 56; Ekirch, p. 15.
[77] The dependence on character references by respectable gentlemen created "vertical chains of loyalty, it was, in fact, 'the module of which the social structure was built.' Powerful men bound less powerful ones to them through paternalism." This, claims Hay, accordingly helped "to maintain order and deference." - Hay, Property, pp. 50-58. In his novel "Joseph Andrews," Henry Fielding neatly illustrates the way in which the statement of a respected individual could dramatically alter the fate of the accused: on their travels through England, the protagonists, the country Parson Abraham Adams and the servant Joseph Andrews, are falsely accused of robbery, a capital offence. In a riotous court scene, Adams and Andrews are, in spite of all their claims, presumed guilty (Adams is denied the right to prove his literacy and, thus, the possibility to claim benefit of the clergy), until a respected squire, who coincidentally knows them, speaks out on their behalf and confirms their good character. All of a sudden, their fortune is reversed, they are saved from the gallows, and the accusers become, rightfully, the accused. - Henry Fielding, Joseph Andrews. Edited by R.F. Brissenden (London: Penguin Books, 1977), pp. 144-154. As Rule shows, other passages of the work also bear interesting references to eighteenth-century court proceedings - Rule, Albion, p. 227.
[78] Ekirch, p. 16; McLynn, pp. 281-4. In 1703, for example, the author Daniel Defoe "was pelted with flowers when in the stocks for writing a satire on the church."
[79] Sharpe, p. 182.
[80] For an explanation of the benefit of the clergy, see footnote 52.
[81] McLynn, pp. 286-7: "In Surrey in 1736-53 179 men and women were sentenced to death for property offences, but 100 of them had the sentence commuted to transportation."
[82] Rule, Albion, p. 240.
[83] Ekirch, p. 19. There was even a "slender hope of rehabilitating the criminal," since, after he had arrived in America, he was forced to work hard for whoever paid the transportation contractors to give him a convict at his disposal. The similarity of this procedure to the slave trade was recognised in England: Although labour was generally considered beneficial, forced labour on a similar scale in England herself was considered unfitting, for, as George Ollyffe wrote in 1731, "The English are free, and should never be slaves." Only a small minority of the English, however, was bothered with the fate of English "slaves" in America and opposed transportation for this reason: "Out of sight, out of mind." - Ekirch, pp. 20-1, McLynn, p. 285.
[84] For London and its surrounding counties, a single merchant (for the first twenty years, one Jonathan Forward) held the monopoly for transporting convicts, and was paid for directly by the treasury, as was for the transportation from the home counties. The transportation of prisoners from the provincial assizes had to be negotiated between local magistrates and merchants, and was paid for by county rates. - Beattie, Crime, pp. 504-5.
[85] Ekirch, p. 18. It seems likely that increased Government revenues over the twenty years before the Transportation Act had allowed for this large expenditure.
[86] Rule even claims the number to have been as high as 50.000. Most likely he refers to the overall number of British transportations, as opposed to the English ones only. Rule, Albion, p. 241.
[87] Ekirch, pp. 21-3.
[88] Ekirch, p. 223.
[89] This view is strongly held by Beattie, who called the introduction of transportation "the fundamental break with the penal practices and penal intentions of the past." - Beattie, Crime, p. 620.
[90] For a discussion of the deterrent value of transportation, see Ekirch, pp. 19, 225-7; McLynn, p. 290. Although in the preface of the Transportation Act, deterrent value was emphasised, contemporaries argued that the threat of a couple of years in America was not severe enough. Beattie, Crime, p. 503, quotes a passage from the original Act: "The punishments inflicted by the laws now in force against the offences of robbery, larceny and other felonious taking and stealing of money and goods have not proved effectual enough to deter wicked and evil-disposed persons from being guilty of the said crimes."
[91] Ekirch, pp. 227-233. All Women offenders who would, in other circumstances, have been transported, as well as men too old or ill to work on the river, were sent to houses of correction, were they had to perform hard labour. - Beattie, Crime, p. 566.
[92] Ekirch, p. 230. For more information on life aboard the hulks, see McLynn, pp. 293-4.
[93] McLynn, p. 294; Beattie, Crime, pp. 574-5.
[94] Ekirch, pp. 231-2. - In addition, the arguments against an inflationary use of the death penalty mentioned earlier in this essay still applied with undiminished strength. Criticism of the "bloody code" increased in strength - a "mental sea change," as Beattie calls it. As an author of the "Gentlemen's Magazine" realised in 1790, "England, which contains some of the most philosophic, humane, and liberal minded men in the world, [was] disgraced with a code of laws which even the most barbarous savage would be ashamed of." - Quoted in Beattie, Crime, p. 630.
[95] Beattie, Crime, p. 513.
[96] This attempt was driven by the entrepreneur George Moore, who was promised £500 from the treasury for transporting 143 prisoners to America. This exceeded the usual profit, especially as it was paid in addition to any gains Moore was to have by selling the prisoners for hard labour. The journey was a failure, and Moore ended up with a heavy loss. "Never again did government officials try to export convicts to the United States." The few additional attempts that were made at transportation to the USA were unauthorised. - Ekirch, pp. 233-6.
[97] Australia was even deemed to be a superior destination for prisoner transports, as the distance between England and Australia exceeded 15.000 miles and made it almost impossible for the transported to return illegally. - Ekirch, p. 237.
[98] Beattie, p. 629. See also Rule, Albion, p. 242.
[99] McLynn, pp. 290-1.
[100] Edward Royle, Modern Britain. A Social History 1750-1985 (London: Arnold, 1987), p. 220.
[101] However, the beneficial aspects of imprisonment were still far from being universally acknowledged. A good example for contemporary criticism of imprisonment in late eighteenth century literature is Samuel Coleridge's poem "The Dungeon" (1797): "Is this the only cure? Mercyful God! / [...] / uncomforted / And [in] friendless solitude, groaning and tears / [...] So he lies / Circled with evil, till his very soul / unmoulds its essence, hopelessly deformed / by sights of ever more deformity!" - Samuel Coleridge, "The Dungeon," in Samuel Coleridge and William Wordsworth: Lyrical Ballads 1798. Edited by W.J.B. Owen. 2nd edition (Oxford: University Press, 1969), p. 80.
[102] Rule, Albion, p. 242.
[103] McLynn, p. 297.
[104] Beattie, Crime, p. 616.
[105] Beattie, Crime, p. 635.
[106] Randall McGowen, "The Body and Punishment in Eighteenth-Century England," in Journal of Modern History, No. 59 (1987), p. 679: "The human body had once been sacrificed to save the body politic; now the human body was to be saved because respect for the body formed the basis for an ever more perfect union."
[107] Beattie, Crime, pp. 619, 637.
[108] Innes and Styles, p. 435.