Jones, William B., Jr.

English

University of Arkansas at Little Rock: UALR Bowen Law Repository

University of Arkansas at Little Rock Law Review Volume 13 Issue 3 Article 5 1992 Crime and Punishment in Eighteenth-Century England William B. Jones Jr. Follow this and additional works at: https://lawrepository.ualr.edu/lawreview  Part of the Jurisprudence Commons, and the Law Enforcement and Corrections Commons Recommended Citation William B. Jones Jr., Crime and Punishment in Eighteenth-Century England, 13 U. ARK. LITTLE ROCK L. REV. 531 (1991). Available at: https://lawrepository.ualr.edu/lawreview/vol13/iss3/5 This Book Review is brought to you for free and open access by Bowen Law Repository: Scholarship & Archives. It has been accepted for inclusion in University of Arkansas at Little Rock Law Review by an authorized editor of Bowen Law Repository: Scholarship & Archives. For more information, please contact mmserfass@ualr.edu. BOOK REVIEWCrime and Punishment in Eighteenth-century England. Frank Mc-Lynn. New York: Routledge, Chapman & Hall, 1989. 392 pp. $45.00(hardcover); Oxford and New York: Oxford University Press, 1991.392 pp. $13.95 (paperback).William B. Jones, Jr. *Since laws were made for ev'ry Degree,To curb Vice in others, as well as me,I wonder we han't better Company,Upon Tyburn Tree!But Gold from Law can take out the Sting;And if rich Men like us were to swing,'Twould thin the Land, such Numbers to stringUpon Tyburn Tree!- John Gay, The Beggar's Opera (1728), III, xiiiEighteenth-century England is often viewed through a distortedlens as the epitome of a one-dimensional Age of Elegance-the era ofpowdered wigs, ornate snuffboxes, Palladian villas, the operas of Han-del, the portraits of Reynolds, and the couplets of Pope. Yet the periodalso produced the notoriously corrupt politics of Prime Minister SirRobert Walpole, the wretched urban conditions portrayed in WilliamHogarth's Gin Lane (1751), and most significantly, what WilliamBlackstone called the "multitude of successive independent statues"that by 1769 prescribed the death penalty for "no less than an hundredand sixty" criminal acts.'* Attorney, Little Rock, Arkansas; Contributing Editor, Spectrum Weekly. B.A., RhodesCollege (1972); M.A. (English Literature), Vanderbilt University (1975); J.D., University of Ar-kansas at Little Rock School of Law (1981).1. 4 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 18 (1769).UALR LAW JOURNALThis sanguinary statutory scheme was known, with good reason, as"The Bloody Code," and it remained in effect, expanding all the while,from the Glorious Revolution of 1688, when fifty crimes were punisha-ble by death, until the end of the Napoleonic Wars in 1815, whenabout 225 separate offenses led to the gallows.2 It may be timely, in thewake of a new wave of state executions and congressional considerationof legislation that would expand the federal death penalty by an addi-tional fifty offenses, 3 to reexamine the most comprehensive body of cap-ital statutes in the history of English law.Crime and Punishment in Eighteenth-century England, a work byBritish historian Frank McLynn, offers a scholarly yet accessible over-view of the Bloody Code in operation and, for American readers atleast, an implicit critique of contemporary arguments in favor of evermore severe criminal penalties. The author employs what he terms an"empirical" Marxist analysis of the factors contributing to the Code'sferocity and longevity." He explicitly rejects, however, the "vulgarMarxism of base and superstructure, where law is considered 'nothingbut' the interest of the ruling class." 5 Whatever the shortcomings of aclass-oriented, economic approach in other contexts (literary criticism,for example), it seems sound enough when applied to a society so oftenfueled and riven by class motives.'Indeed, the decidedly non-Marxist historian Peter Gay, referringto the Code's "luxuriating jungle of retribution,' 7 has observed that therapidly lengthening list of eighteenth-century English capital crimesconsisted of "assaults on the comfortable orders" and that "[e]veryyear, perhaps more than once a year, the wall around property wasraised higher still."8 McLynn estimates that an average of one newcapital offense was added annually to the Code during George II'sreign (1727-1760). 9 Many of the newly classified felonies were, as onestandard survey of English legal history informs us, "wrongs to prop-2. FRANK McLYNN. CRIME AND PUNISHMENT IN EIGHTEENTH-CENTURY ENGLAND iX(1991).3. H.R. 3371, 102d Cong., 1st Sess. (1991).4. McLYNN, supra note 2, at 341.5. McLYNN. supra note 2, at xv.6. See, e.g., E.P. THOMPSON. WHIGS AND HUNTERS: THE ORIGIN OF THE BLACK ACT(1975); E.P. THOMPSON. CUSTOMS IN COMMON: STUDIES IN TRADITIONAL POPULAR CULTURE(1991).7. 2 PETER GAY. THE ENLIGHTENMENT, AN INTERPRETATION: THE SCIENCE OF FREEDOM427 (1969).8. Id.9. McLYNN, supra note 2, at ix.[Vol. 14:531BOOK REVIEWerty" such as stealing railings from buildings, fish from rivers or ponds,goods or merchandise from wrecked ships, and Exchequer bills, banknotes, and dividend warrants.1"The Bloody Code was a patchwork of acts that, in absurdly precisedetail, catalogued those offenses entailing execution. With the cele-brated English indifference to consistency, members of Parliamentpassed a variety of anomalous statutes. As McLynn reveals:To commit a theft in a furnished house which was let as a whole wasnot an offence. Pickpocketing carried the death penalty but child-stealing, despite its high incidence, was not even an offence. It was acapital felony to steal goods worth more than forty shillings from aship on a navigable waterway, but not on a canal. To steal fruit al-ready gathered was a felony; to steal it by gathering it was a meretrespass. To break a pane of glass at 5 p.m. on a winter's evening withintent to steal was a capital offence; to housebreak at 4 a.m. in thesummer when it was light was only a misdemeanour. To steal goodsfrom a shop and to be seen to do so merited transportation; to stealthe same goods "privately," that is, without being observed, was pun-ishable by death. In extreme cases parricide might receive the samepunishment as the theft of five shillings.1"The mystifying irrationality of the Code, according to McLynn, wasintended to serve the purpose of deterring criminal behavior among thelower orders by its "awful example and warning."12Contemporary critics of the Code disputed its deterrent effect. In aParliamentary address in 1778, Sir William Meredith launched an at-tack on the system in which he pointed out that only half of all con-victed felons were hanged and that while forgers and coiners were al-most always executed, they remained among the most commoncriminals. 13 Sir Samuel Romilly, in 1786, insisted that execution forproperty offenses was excessive and that the very harshness of the Codeactually contributed to the spread of crime.1" On a less theoreticallevel, judges and juries frequently bent the Code's provisions to avoidimposing the death penalty, convicting on lesser offenses or valuing sto-len property at lower rates; in some instances where a finding of guilton a capital charge was clearly required, jurors would mumble their10. 11 SIR WILLIAM HOLDSWORTH, A HISTORY OF ENGLISH LAW 530-31 (1938).11. MCLYNN, supra note 2, at xi.12. McLYNN, supra note 2, at xi.13. MCLYNN. supra note 2, at xii.14. McLYNN. supra note 2, at xii.1992]UALR LAW JOURNALverdicts and judges would take the hint, adjusting the sentencesaccordingly. 5Even with these exercises of discretionary mercy, though, the num-ber of executions was appallingly high, especially during postwar crimewaves such as the one that followed the return of demobilized veteransof the American Revolutionary War; between 1783 and 1787, 348hangings occurred, marking an eighty-two percent increase over theprevious five years. 6 McLynn accurately focuses upon the impact ofwar as a major element in the cycle of eighteenth-century Englishcrime and punishment-from the pressing of criminals into the ranksof the British armed forces to the failure of the peacetime economy toaccommodate unemployed soldiers and sailors. The chapter devoted tothe subject is one of the most persuasive in the book.McLynn examines as well the relationship of population growthand economic development to English society's fluctuating crime rateand the state's increasingly brutal remedies. Although one would natu-rally expect this portion of the study to be drenched in academic Marx-ist jargon, it is, apart from an obligatory nod or two in the direction of"alienation" and "labour-time,"' 7 remarkably free of reductive polem-ics. In any case, it is difficult to argue with the author's emphasis onurbanization and industrialization as keys to understanding the natureof eighteenth-century criminality.' 8The population of London increased, McLynn calculates, fromabout 575,000 in 1700 to 675,000 in 1750; by the time of the firstofficial census in 1801, the city claimed 900,000 inhabitants.' 9 Thesefigures reflect not only a declining death rate, 0 but also what the au-thor characterizes as a population "implosion" 21 resulting from an ac-celerating migration from rural areas to urban centers. Before thistransformation of the English city, property crime had been rare, but,McLynn comments, "the actual circumstances of life in an urban envi-ronment, where over crowding and competition for space, jobs, andamenities went hand in hand with vastly increased aspirations, can al-15. MCLYNN. supra note 2, at 261-62.16. MCLYNN. supra note 2, at 260.17. MCLYNN. supra note 2, at 301, 312.18. For an eighteenth-century perspective, see Oliver Goldsmith's inverted pastoral, The De-serted Village (1770).19. MCLYNN. supra note 2, at 1.20. McLYNN. supra note 2, at 2.21. McLYNN, supra note 2, at 299.[Vol. 14:531BOOK REVIEWmost be said to have propelled the poor into crime. 22At the same time, the rise of Britain's commercial, financial, andindustrial empire created new forms of wealth and new demands forsecurity. English society, however, lacked the means to afford the prop-ertied classes much in the way of protection. Wary of "professional-ism," the English resisted the concept of a centralized law enforcementauthority along continental lines, regarding it as a threat to traditionalliberties .2 Hence, the responsibility for apprehending criminals was di-vided among various local officials such as justices of the peace, parishconstables, and, in London, the parish beadle and watch, from which ametropolitan police force was later to evolve.24Private rewards proved more effective than public agents in snar-ing criminals, a circumstance that led to the ambiguous eighteenth-century institution of the thief-taker. Foremost among the breed wasJonathan Wild (1683-1725), who worked shamelessly and successfullyon both sides of the law for more than a decade, evading even an act ofParliament aimed specifically at him, until he overplayed his hand andwas sent to the gallows at Tyburn.2 5 Borrowing Wild's organizationaltechniques, the novelist and London magistrate Henry Fielding estab-lished the "Bow Street runners" in 1749, sending them outside his ju-risdiction in pursuit of criminals; with this popular band of "glorifiedbounty-hunters," McLynn notes, Fielding helped to domesticate thattroublesome foreign word "police" and to lay the foundation for Scot-land Yard.26If the idea of a police force seemed alien to the English for muchof the eighteenth century, so too did the theory and practice of incar-ceration. Conviction on a major felony charge generally meant either"to dance the Paddington frisk" or to receive a royal pardon 7.2 Trans-portation was utilized as an alternative to hanging for certain seriousoffenses.28 Corporal punishments, such as the pillory and whipping,were available for lesser offenses.29 Not until the Penitentiary Act of1779, though, did imprisonment become a truly viable option for the22. MCLYNN. supra note 2, at 300.23. MCLYNN. supra note 2, at 17.24. MCLYNN. supra note 2, at 18-19.25. MCLYNN. supra note 2, at 22-29.26. MCLYNN. supra note 2, at 32-35. Fielding also borrowed Wild himself, making him theantihero of his ironic novel, THE LIFE OF MR. JONATHAN WILD THE GREAT (1743).27. MCLYNN. supra note 2, at 264, 280.28. McLYNN. supra note 2, at 287.29. MCLYNN. supra note 2, at 281-82.19921UALR LAW JOURNALEnglish criminal justice system, which had previously used jails forhousing prisoners awaiting trial, debtors, and the unemployed poor.30By the end of the eighteenth century, imprisonment had largelysupplanted transportation as the penalty for minor property crimes,31and only about ten percent of those condemned to death in Londonwere executed.32 McLynn credits the changes in the administration ofjustice to a combination of factors, including the influence of such En-lightenment thinkers as Beccaria and Montesquieu on individual re-formers 33 and the new industrial enterprise's need for regularity andpredictability in the application of the law.3"The waning of the Bloody Code, then, is for McLynn a conse-quence of both culture and economics, just as the conditions producingcrime are multifaceted: "Economic factors create the necessary sub-stratum for crime, but its nature depends overwhelmingly on culturalfactors."3 5 As for the Bloody Code's long life, the author asserts that itsdefenders resisted reform for more than a century in part because theysubscribed to the myth of deterrence, but primarily because the "com-plex network of hierarchy, authority, and deference could be held inbeing only if the elite reserved the ultimate weapon as an awfulexample."36Here, McLynn attributes to the representatives of the eighteenth-century ruling class more subtlety and foresight than they may in facthave possessed. The Bloody Code's eccentric evolution suggests limited,localized aims rather than a grand, "ideological" design. Still, as Mc-Lynn shows, with few (mostly symbolic) exceptions, 7 its operationclearly favored the privileged, giving the lie to the era's equality-before-the-law rhetoric. Crime and Punishment in Eighteenth-century Eng-land may provoke reflection on some of the unspoken assumptions ofmodern American criminal law.30. McLYNN. supra note 2, at 294-96.31. MCLYNN, supra note 2, at 314.32. McLYNN. supra note 2, at 309.33. McLYNN, supra note 2, at 314.34. McLYNN. supra note 2, at 315.35. MCLYNN. supra note 2, at 318.36. McLYNN. supra note 2, at 256.37. The author discusses, for example, the cases of Lord Ferrers, hanged for murdering hissteward, and Lords Lovat, Balmerino, and Kilmarnock, beheaded for the participation in the Jaco-bite rebellion of 1745-46. McLYNN. supra note 2, at 150-51, 159.[Vol. 14:531

Crime and Punishment in Eighteenth-Century England

https://lawrepository.ualr.edu/cgi/viewcontent.cgi?article=1911&amp;context=lawreview

Crime and Punishment in Eighteenth-Century England

Abstract

Similar works

Full text

Available Versions

University of Arkansas at Little Rock: UALR Bowen Law Repository