11) Crime and the Law

There was always absolute minimal bureaucracy during the period. There was no police force and no representatives of law and order on the ground, so it's questionable how order was maintained. There was only the constable. Hay said the rhetoric of the death sentence was central to maintaining order.

Since Hay, some emphasise the use of the criminal justice system in the hands of the state as an instrument of social control, some emphasise the ways law placed power in the hands of the ruling elite, and others emphasise the ways the criminal justice system was met with consent by broad social strata and was largely accepted by the majority of the population.

The criminal justice system was employed by the state to instil control and the ruling elite played a large role in running the judiciary. Middling people participated as litigants and jurors. The system was largely accepted by the people.

People used the law to protect their rights and property from others of the same social standing.

The assizes were the highest ordinary court with only the King's Court of Appeal above it. They were crucial for crown rule. They held biannual peripatetic (travelling) courts in the summer and winter by pairs of lord judges dispatched by Westminster. They rode on curcuits and stopped in county towns and provincial capitals along the way equipped with special commissions to empty the jails.

The 6 circuits the judges rode (North West, North East, Midlands, South West, South East and London) were established in 1550 and remained in force throughout the period. They presented a special order in the towns that allowed them to empty jails and try people waiting for legal judgement.

An important aim of the Glorious Revolution was to make England safe for propertied people against crown abuse. The protection of property was at the height of parliamentary interests and capital legislation also reflected this concern.

There was an increasing spate of laws after the Glorious Revolution. e.g. in 1698, the theft of goods worth more than 25 pence became considered a capital offence. Other laws were stipulated explicitly against sheep stealing, forgery, breaking into shops and warehouses, cutting trees, poaching etc. Statutes were enacted for preserving public property. e.g. a special act legislated against damaging the Westminster Bridge in 1736.

Sir Radzinowitz noted there was an increase in the number of hanging offences between 1688 and 1830. In 1688, there were about 50 crimes that resulted in the death penalty. In 1830, there were about 200. e.g. the Black Act of 1723, created 50 more capital offences.

Capital punishment was fairly easily incurred as almost any offence, if taken to an extreme, could carry a death sentence. The executions were very ritualised and orchestrated and were designed to create fear to maintain public order. Hangings were held in public usually on market and fair days or racing days.

Assizes were heralded to enter the town with soldiers, trumpeters and music. The enquiry was held in public, and when the sentence was announced, people fell to the ground, children would cry etc. They all begged for the accused's life. The decision could be appealed to the crown, but within a couple of days, the death sentence was announced. Crowds of 3000-7000 people were standard. The accused could give a last speech, although most couldn't manage to. They were often dragged up to the gallows and lost all self-control. The weight of the person wasn't taken into consideration either so some suffered in agony for sometimes up to 30 minutes. Family and friends would pull their legs to bring death quicker.

Public execution was only abolished in 1868. Although many of the sentences appear to have been reprieved. The mighty power of the state was manifested in public scenes of judgement and execution, and in the King's prerogative of mercy. Between 1770-1830, 7000 men, women and children were executed, but this was out of 35,000 sentenced.

The English were proud of the absence of public torture and executions like breaking on the wheel. But, cruel measures of execution and punishment were carried out in public (albeit rarely), especially in cases of treason. More people were also executed in England than in neighbouring countries.

In 1718, transportation to the American colonies was substituted for the death penalty. They were sentenced to labour abroad and were freed after 7, 14 or 21 years.

Most executed in the 18th century weren't executed for the new property offences. A fifth were hanged for murder, 2/3 for long-established property crimes, only 1/10 were hanged for stealing horses, sheep etc, and 1/12 were hanged for forgery.

There were several paradoxes in crime and punishment. The state and propertied ruling elite manifested their power by fostering an extremely harsh legal system with a growing number of new capital offences. But, the laws weren't enforced to the letter. The power of the state was also manifested by the exercise of discretion in judgement and sentencing. The majesty of the law was evident in state enforcement and through the royal prerogative of mercy. So, in the first half of the 18th century, the number of capital offences rose, but the proportion of people executed declined. 

From 1689, there was increased autonomy of the magistracy. There were declining appeals against the magistracy and Tory justices were purged from the bench, but they returned in the 1730s. From the 1720s, activity from the bench increased as justices directed their attention away from party strife to local administration. There was a de-centralisation taking place.

By the 17th century, divisions of counties into areas of jurisdiction for meeting out of session became formalised. The 'petty' and 'double' quarter sessions came to be. Justices divided the labour among them for dealing with matters out of session. They sat in pairs or individually and dealt with day-to-day things. By the mid-18th century, there were regular meetings of petty sessions (Norma Landau). So, while sitting in 'double sessions', justices could adjudicate on a broad range of issues, like poor rates, vagrancy, and drunkeness and b astardy cases.

Justices of the Peace had many legal powers when acting singly. A magistrate essentially had a mobile court and could pronounce judgement on his lesser neighbours. Landau argued their power as magistrates consolidated the power of the gentry over its lesser neighbours and helped make a cohesive government order.

Despite there being a strong emphasis on the power of the central state in the proceedings of the major courts and execution scene, there was also a strong pull towards decentralisation in the actions of the magistracy.

Ordinary people also used the law. Those who brought charges were the ones who had been affected, like the person who had their goods stolen. So, it was ordinary people who were bringing the charges. People knew the law and used it to secure their rights. The law was usually used by ordinary people against each other.

Under the 'settlement' laws, poor relief became an entitlement.

The greatest challenge to Hay's argument is the fact that the law was so clearly in the hands of ordinary people. King refuted Hay's claims by showing how in Essex Quarter Sessions between 1760 and 1800, 1/6 of the prosecutions were brought by labourers, twice as many by farmers, a third by tradesmen and artisans, and only an eighth by gentlemen.

Middling and upper propertied people were represented in the charges beyond their rate in the population, but it's also clearly evident that the law was used by ordinary people and was used by them to settle disputes among themselves.