hsr1990_229

8/6/2019 hsr1990_229

1/32

Crime and Authori ty in Eighteenth Century England

Law Enforcement on the Local Level

Dietrich Oberwitiler*

Abstract : The his tory of cr ime and the cr iminal jus t icesystem has been a field of intensive research in the English social history for some years. This article pursues atwofold aim: Firstly, it is intended to give a broad overview over the social hist ory of ei ght een th- cen tur y cr im ean d cri min al justic e in Englan d* disc ussi ng differ ent ap proaches and methodological quest ions . In the second part, the focus will be on the actual working of the criminal justice system on the level below the criminalcourts where i t was the task of the justices of the peaceto enforce the law. As the analysis of justices ' notebooksreveals , i nfor mal ways of dea l ing with del in quen cy werecommon on this local level . The importance of these

findings for the character of the criminal justice systemand au tho ri ty in gen er al will be assessed in part th re e.

1. The English History of Crime: A Review on the Field

Roughly fifteen years of increasingly intensive research on the history of cr im e hav e resul ted in a mu ch mo r e accur ate pic ture of cr i me and thecr iminal jus t ice system in Engl ish his tory than has previously been known.

Tradi t iona l ass ump tio ns that the old system of com bat t in g cr ime was basically cruel, irrational, and inefficient and that the development of thecriminal justice system in the last two hundred years was a history of

progress (1) have been replaced by a more balanced view. This, however,was the result of a l ively and partly controversial debate among socialhistorians which took place over the last fifteen years or so (2). The fundame nt al pr esu mp tio n of a l l h is t or ia ns deal ing with this subject was thatcriminality and the criminal justice system reflects the character of socialrel ati ons an d au tho ri ty in a society, al th ou gh not all of th em h av e gon e so

* Addr ess a ll com mun ica t io ns to : Die t r i ch Oberwi t t l e r , Bee thovens t rae 1, D - 53 00 Bo nn 1.

3

Historical Social Research, Vol. 15 1990 No. 2, 3-34

8/6/2019 hsr1990_229

2/32

far as to consider this field as central to unlocking the meanings of eighteenth-century social his tory.(3) What was puzzl ing Engl ish his tor ians

particularly was the relative absence of fierce social tensions and politicalins tabi l i ty which dis t inguished England from other European countr ies ,

especially France (4). The acceptance of the legal system (and hence of authority) by large parts of the population undoubtedly played an impor

tant role in achieving this stabili ty (5).

This article, too, tr ies to give some answers to this fundamental question.

But the focus will be exclusively on the lowest level of eighteenth-centurylaw enf or ce me nt whic h was run by th e justi ces of the peace. As will be

shown, this level was of crucial importance for the character of the criminal justice system as a whole.

The History From Below Approach

It seems useful to commence with a brief discussion of general trends andde ve lo pm en ts of th e histor y of cri me in Engl and . Basically, the re have been two different interpretations which tried to explain the role of thecriminal justice system within society. The first, which has been called thehi sto ry from belo w app ro ac h, claim ed that the accep tanc e of the legalsystem was the result of a great deceit: the ideology of equality before thelaw and the belief in the rule of law which was widespread in eighteenth-century England was according to this view merely the result of a successful attempt by the small ruling class to disguise the real purpose of thecr im in al just ice system, the protectio n of a radical division of pro pert y.(6) The originator of this radical approach, which subsequently triggeredthe crime wave of the 70s and 80s, was E.P.Thompson who discoveredcrime when searching for signs of sub-polit ical protest and class consciousness in the late eighteenth and early nineteenth centuries (7). Thompson and his disciples presented their marxist interpretation most prominen tly in their collection Al bion 's Fatal Tree (8). Ex pla in ing the parad oxof an incr eas ingl y savag e penal code wh ic h inf licted the dea th pe nal ty on awide range of petty property offenses on the one hand and relatively fewactual executions on the other hand, Douglas Hay emphasized the im

po rt an ce of discre tion and bene vol enc e exercised in this way in the cour tsfor th e paternal is t ic kind of auth ori t y in e ig hteen th-ce ntury Engla nd (9) .Mo re ov er , the cri min al law has been given an im po rt an t role in the process of esta blis hing a capitalist ic eco nom y in rura l Engla nd wh en traditional customary rights of the labouring poor to use land were more andmore replaced by the capitalist ic concept of exclusive property (10). The

notion of social crime denotes types of behaviour, such as wood gathering, poaching or smuggling, which were declared il legal by the state butwere nevertheless regarded as legitimate by large parts of the lower classes

4


8/6/2019 hsr1990_229

3/32

(11). This concept of social crime has since been an important theoreticalstarting point for English historians of crime (12).

It is one important result of the history from below approach that thehis tor y of cr im e is to a larg e ext ent th e his tor y of th e lab ou ri ng classes and

the poor who counted for the great majority of the accused. For this reason, the history of crime has to be embedded in the social history of thelower classes in general (13).

Having said that, it is necessary to deal with the criticism directed at thisradical view of the e ighteenth-century cr iminal law. On the one hand, theconcept of social crime has been questioned for several reasons. This is notonly true for the very peculiar case of a gang of poachers in the royalforests whose s tory has been wri t ten down in E.P.Thompson 's Whigs andHunters (14); poaching in general was not made a criminal offence be

cause new capitalist ic property rights were at stake, but because i t wasagainst the old ar is tocr at ic interes t . Poa ch ing was even commi t te d par t lyfor capitalist motives, since there was a rising demand for game in thetowns (15). Smuggling as well could be described as an attempt to maximize profits. Yet, there are examples of criminal legislation which clearlyhad a s t ro ng class char acte r. Emb ez zl em en t a t the workp lace, especial ly inthe put t ing out industr ies , was common and regarded as legi t imate by mostof the workers , a l though i t was subject to f ines and short imprisonment .Jo hn Styles has emp has ize d, how ever , that the effor ts of ma nuf act ur ersand legis la tors to redef ine proper ty r ights and to out law embezzlementwere not peculiar to the eighteenth century but can be traced back toearlier cen turies (16). J.C.Orth (1987a and 1987b) has recently dealt withanother example of e ighteenth-century c lass legis la t ion: the combinat ionacts which made early trade unionist activit ies a criminal offence.

On th e ot he r ha nd , th e basi c conc lus ion o f the his tor y from below approach that the criminal justice system was a mere tool of oppression inth e ha nd s of a small ru lin g class has been de nie d (17). J . H. Lan gbe in ha sshown that Hay 's basic hypothesis that the cr iminal jus t ice system wasdesigned to stabilize the existing order is to some extent tautological andcannot be falsified (18); Peter King (1984b) in a very influential article hasstressed the fact that in most cases of property crime it was the middlingand lower sort of people who were victims of property crimes; in fact, inmany cases members of the lower classes assaulted or stole from their equals. And those victims from the lower classes made extensive use of the courts for their own purposes. (19) These findings which were basedon quant i ta t ive research clear ly don ' t f i t to the pic ture D.Hay and othershav e given. On e fu nda me nt al sho r t com ing of the his tory f rom belo wapproach seems to me to resul t f rom a negl igence of quant i ta t ive methods(20). This is not to say that social crimes, for example, were of no significan ce for th e cha ra cte r of th e cr im in al jus tic e system at all ; but in orde r to

5


8/6/2019 hsr1990_229

4/32

get a balanced view it is indispensable to look to the statistical evidence

wh ic h suggests that social cr im es acc oun ted onl y for a small pr op or ti on of

a l l cr imes prosecuted.

The Quant i t a t ive Approach

That leads to another approach to the history of crime which shall bediscussed here: the quantitative approach (21). The rationale for quantitati ve resea rch ne eds har dly to be expl aine d; m an y of the key ques tion sabout cr ime deserve quant i ta t ive answers , and many of the sources produced by the insti tutions of law enforcement are perfectly suitable for statistical analysis. Yet, unless applied with the utmost caution and a high

degree of sensibili ty for the l imitations of this approach, quantitative methods do not necessarily enhance the historical knowledge. It is one aim of this article to demonstrate some of the problems the historian faces whenusing statistical data especially from a relatively high level.

There are basically two different objects of statistical analysis: the pattern of criminality and the pattern of prosecution. It is a truism for anygiven period that the known crime rate is only the rate of recorded crime,and that there is a dark figure which cannot be assessed properly. Allhistorians agree that this dark figure was considerably higher in the eigh

teenth century, when there existed neither a detective police force nor state prosecution, than it is today. Nevertheless, on condition that the extent of th e offen ses actua lly co mm it te d wer e reflected eve n to so me deg ree in theindictments brought to court, an analysis of fluctuations of the crime rateover t ime may make sense (22). This is particularly true for short-termfluctuations, whereas long-term developments in the crime rate are l ikelyto be caused by insti tutional changes. One of the favourite questions examined over the last years is whether there was a correlation between econo m ic ha rd sh ip and the level of pro per ty offenses. D.Ha y in a very tho

rou gh study has con clud ed that th er e was such a corre lation whi ch be cam eobv iou s only du ri ng wa rt im e (23). I t tu rn ed out that war and peace had themost important impact on the crime rate with periods of war having arelatively low level of rec orde d crim es. Th e endi ng of wars , on the other hand, were followed by the release of a great number of unemployed ex-soldiers who were virtually forced to get their l ivelihood by dishonestmeans. Thus, a simple positive correlation between the cost of l iving andth e level of pr op er ty cr im es clea rly did no t exist, as S.R.Wilson (1986) hasrecently emphasized. It is hardly possible for the quantitative historian to

take into account all the contributory factors which were relevant for thelevel of recorded crimes. To mention just one point: i t is known that during wartimes, many male offenders were not put on trial but went un

punished if they enlisted in the army, thus distorting the rate of recorded


8/6/2019 hsr1990_229

5/32

crimes (24). Thus, Innes and Styles are right to conclude that there can beno his tory of cr iminal i ty separate f rom the his tory of law enforcement(25).

Th e prosecut i on of cr ime s const i tutes the ma jo r object of quant i ta t i veresearch. Here above al l , J .M.Beanie 's book Crime and the Courts inEn gl an d 1660-1800 wh ic h deals with both the patter n of cri min alit y an dthe pat tern of prosecut ion represents one of the most important achievements of the English history of crime so far (26). Almost every aspect of the prose cut ion of felonies start ing with th e detec tion of cri mes and end ingwi th p un is hm en ts i s dea l t wi th comprehens ive ly, comb in i ng qua l i t a t iveand quant i ta t ive methods. The core of his s tudy is , however, a quant i ta t iveanalysis of the working of the assize courts, the highest level of Englishcr iminal jur isdict ion. Beat t ie is able to show, for example, that there had

already been a shif t towards secondary punishments in the beginning of the e ighte enth c ent ury wh en th e t ra nsp orta t ion of fe lons to Ameri ca wasint rod uced (27) . Th e nu m be r of actual execut ions had decreased even ahundred years ea r l i e r accord ing to PJenkins (1986) . Transpor ta t ion andsubsequent ly imprisonment did , therefore , not replace capi ta l punishments bu t whipp ing and brand ing the thumb (28) .

Although Beanie 's book offers very balanced interpreta t ions and undoubtedly enhances the knowledge about cr iminal i ty and law enforcementin seve ntee nth an d eightee nth centur ies consider ably, reason s for precau

tion r em ai n. It is a c o m m on f eatur e of mos t studi es of this qua nti tat iveapproach that they are based upon data sampled on a relatively high level.Beattie has taken his sources mainly from the criminal courts (assizes andquarter sessions) of Surrey and Sussex. Yet, it is clear that only a part of allcases of felonies (those offenses that had to be tried either in quarter sessions or in assizes) actually reached this stage of prosecution, as Beattiehimself admits. That means that an exclusive focus on the cases brought tocourt distorts the reali ty of early modern law enforcement. The role of the pret rial p roces s nee ds to be ex am ine d mo re carefully than has been do ne

(29). This is even more the case as only a minority of offenses were felonies; the major i ty of offenses which were cal led misdemeanors could bedealt with by justices of the peace outside the courts. Because these pettyoffenses wer e mu ch m or e f requent in the e ighteen th cen tury, they and thewa y the y we re tre ated ar e mo r e char acte ris tic of the cr imi nal justi ce system as a whole than felonies and the work of the courts. Beattie 's object ion that only mainstream offenses as thef t , burglary, robbery e tc . wereregarded as cr iminal by contemporar ies and that i f h is tor ians deal t wi th

both petty offenses and felonies together i t would lead to confusion does

not convince (30). I t would be easy to show that the criminal law reformersof th e eig hte ent h cen tu ry w h o wer e obsessed by the idea of pr ev ent io nregarded pet ty offenses as par t icular ly dangerous (31) .

7


8/6/2019 hsr1990_229

6/32

The lower levels of law enforcement and the different kinds of offenses

which were typical on these levels have attracted a number of historians inrecent years. Approaching the subject by means of local case studies rather

than on a high level, they offered a new, alternative view on the criminal jus tice system of early mo de rn E ngl and (32).

The Inst i tu t ional Approach

There has been a more general shift towards the study of the insti tutions of law enforcement in recent years. To some extent, this development seemsto be inevitable. It is a result both of the history from below and thequant i ta t ive approach that a very thorough acquaintance with the workingof th e insti tutio ns of law enf or cem ent is necessary wh en dea lin g with th e

his tory of cr ime.

Various aspects of the working of the criminal justice system have beenthe subject of studies during the last years. The offices which were concer ned with law enf orc eme nt startin g with th e village cons tabl e hav e beendealt with (33). A bulk of studies have been devoted to the office of the

jus tice of th e peace whi ch was of crucial i mp or ta nc e for the wo rk in g of thecriminal justice system, as will be argued in this article (34). The mostthorough and s t imulat ing work on the jus t ices has been done by NormaLandau (1984) who put the emphasis especially on the legal framework

and the public image which shaped their role in the criminal justice sys tem.

On the level of the criminal courts, the focus in recent years has been onthe juries. Traditionally boasted as the bulwark of Brit ish l iberties, the

juries have been denoted by the history from below approach as the toolsof aristocratic class interest (35). Little work has been done so far on theearly modern prison system; a study of J.Innes (1987) represents the mostrecent account of the history of the houses of correction (36).

The transit ion from the traditional to the modern criminal justice sy

stem which took place mainly in the early nineteenth century is one of themost complex and controversial areas of research. After a t ime in whichthe s ignif icance and the thoroughness of this t ransformat ion has beenstressed and a very unfavourable pic ture of the reformers ' mot ives has

been given claiming that their intention was above all to enforce socialcontrol over the lower classes more rigorously (37), there has been a trendtowards a more careful and balanced assessment of this process. Was change or ra ther cont inui ty character is t ic of the actual development of theinsti tutions of law enforcement? To answer this question, detailed studies

of both the old and the new system of law enforcement are indispensable. A recently published collection of essays by D.Hay, P.King,D.Philips, J .Styles and others offers insights into the prosecution process

8


8/6/2019 hsr1990_229

7/32

and its changes during the crucial period of the late eighteenth and earlyninet eent h centur ies (38) . Th e introduct i on and ear ly dev elo pme nt of a

professional police force is one of the central points of interest here. Theidea that the mode of law enforcement was rapidly transformed by theint rod ucti on of the me tr op oli ta n police forces in 1829 has co me un de r revision; continuity rather than change seems to have been typical for reali ty of law enforcement (39). Another point of disagreement is the question about the causes of the transit ion and the factors which determinedits shape and timing. In his massive volume Police and Protest in England and Ireland 1750-1850, Stanley Palmer argues that i t was the fear of

popu lar disor der and pol i t ical e xtr emi sm that induce d the Engl ish government to introduce a paid police force; emphasis on the detection of crimedid not eme rge until the secon d half of th e cen tur y. (40) Ot he r hist ori ans

as C.Emsley (1986) and D.Phi l ips (1980) have maintained that the mainst imulus for pol ice reform were demands that the system of combat t ingcrime should be made more effective. Incidents of public disorder such asthe Go r do n Riots in 1780 we re of cour se of great i mp or ta nc e for the soften ing of crit ical att i tu des towa rd s a prof essi onal police force; ho we ver ,the writings of the early police reformers such as the influential A Treatise of the Police of the Metropolis by Patrick Colquhoun and the publicdiscussion about the necessity of a police reform do not admit for anydoubt that crime, whether petty or capital , was in fact a chief concern of

the reformers (41) .

II. The Work of the Justices of the Peace

In ord er to learn so me thi ng abo ut everyday cr ime and law enforc eme nt , i tis the work of the justices of the peace (or magistrates, as they were synony mo usl y called) to whi ch on e mu st tu rn . Law enfo rc em ent on the level

below th e cri min al cour ts, on th e local level, rested with the jus tic es w h ower e sup por ted by cons tabl es and oth er parish officers. Justic es had to dealwith all kinds of offenses, ranging from profane swearing or stealing fruitf rom orc har ds to thef t, robber ies and hom icid es . In most cases , the jus t i cesact ing outs ide the courts could hear and determine the cases themselvesusing su mm ar y jur i sdict ion and other legal ins t r um en ts to deal wi th a llkinds of misdemeanours; but if a felony was reported to a justice, i t washis responsibili ty to act as an investigating judge by examining the caseand committing or bailing a suspected felon for trial . Thus, most cases of

crime which were officially prosecuted came before a justice. This is whythe wor k of the justice s gives a fairly realisti c pictu re of cri mi nal ity inear ly modern England .

9


8/6/2019 hsr1990_229

8/32

That it is possible at all for historians to analyse law enforcement on thislocal level is due to the notebooks which were kept privately by some

just ices . Al though the keeping of notebooks was s t rongly recommended,only few did keep one, and only very few of them have survived. Five of these surviving notebooks containing about one thousand cases have beenanalysed for this study (42). The degree of information given in thesenot eb ook s is differing: at best, all cases br ou gh t before the just ices toge the r with i nfo rma tio n about the peop le invol ved and the ou tco me are rec ord ed;unfortunately, not all of them come close to this high degree of comple

teness . Apart f rom these notebooks, a lso house of correct ion calendarshav e been used which contai n inf or ma tio n abo ut those cases whi ch resulted in a committal to this type of prison (43).

Enforcing the criminal law was only one part of the duties of justices of the peace who were at the same time in charge of the county administration. Due to the nearly complete absence of any state-controlled bureaucracy in England, virtually all matters of internal policy, ranging from themaintenance of streets and bridges as well as of law and order to thesupe rvis ion of tra de an d indu str y, we re ent rus ted to th e wo rk of thes e

unpaid men who acted voluntar i ly and who came mainly f rom the landedgent ry. As aristocr atic r ule rs of th e na ti on , the y wer e rarely sub mit ted tocontrol, and their discretion was considerable in administrative as well as

10


8/6/2019 hsr1990_229

9/32

in cr iminal mat ters . A s tudy of the jus t ices ' notebooks can therefore shedlight on the actual enforcement of the criminal law on the local level.

Offenses against the peace

What kind of offenses were characteristic of the local level of law enforcement, and in what way did the justices deal with these offenses?

As figure 1 shows, by far the largest group were the offenses against the peace. These offenses included a wide range of incidents such as assaults, bat ter ies and insul ts which took place mainly among neighbours , col leagues or within the families; a third of these cases reported to the justiceswer e com mit ted by men against wo me n. Interp ers onal violence seem tohave been very widespread in ear ly modern England, and i t was muchmore tolerated by society as an inevitable concomitant of everyday life,than it is today. It is fair to assume that only a fraction of cases wereactual ly prosecuted.

As the title of the office indicates, keeping the peace was the one of the principal tasks of the justices; but in cases of private disputes, justicessough t the set t lem ent of thes e conflicts, not th e pu ni s hm en t of th e offenders , as the chairman of the Middlesex just ices explained:

In Complaints of th is Sort , where the Injury is but smal l , the Magistrate . . . cannot better exercise his Humanity, and I may add, his Wisdom, than by persuading the Par t ies to Peace and Reconci l ia t ion; anExpedient which I have seldom known to fail . (44)

In the great maj ori ty of br ea che s of th e peace wh ich w er e re por ted tothe justi ces, no forma l action wa s ta ke n; William H u n t rec ord ed an agreement between the parties in 75 p.c. of these cases such as in the followingcase in which he granted a warrant against several persons for

. . . their violent ly assaul t ing and beat ing the complainant in a barbarousmanner and threatening to shoot her with a pis tol . The par t ies agreedwithout a hear ing. (45)

Even a fighting with th e su bse que nt dea th of a parti cip ant was notreg ard ed as a ma tte r of cr im ina l prose cut ion (46). Th e Engl ish law of

fered an a l ter nat iv e ins t r um en t for the t re at me nt of offenses against the peace: the so-called surety of the peace (47). A justice could order a personto enter in to a recognizance, a legal document in which the del inquent

promised not to offend in the same manner again. If this promise wascontravened, a sum of money which was f ixed on the recognizance wasforfeited to the crown. This process, also called binding over, was designedto pr eve nt fur the r conflicts an d to coer ce a pers on to lawful beh av io ur .Persons who were deemed too poor to pay the sum if forfeited or whocould not produce respectable persons speaking on their behalf could instead be sent to the house of correction, for want of sureties. In this case,

11


8/6/2019 hsr1990_229

10/32

Table 1: Decisions of Justices in Cases of Breaches of the Peace (in %}

Justiceno result

recordedinformal

settlementbinding

oversummaryconviction

fortrial total (n)

W.Brockman 85,7* 4. 8 1 4,8 4,8 - 100,1 21R-Brockman 20,0 733 - 6,7 100,0 15H.Norris 62,6* 24,1 11,0 0,9 1,4 100,0 219

RAVyatt 66.1 1 6,8* 8,5 8,5 10,2 100,1 59

W.Hunt 13,7 74,8 8,4 u 2,1 100,1 95

Source: Sample Notebooks

Of the cases in the column "no result recorded", a large percentage is likely to have been settledinformally without or upon hearing before the justices.

b in din g over could wo rk as a qua si- pun ish men t directed pr i mari ly against people from low social strata or without social ties in the community. Onlyin a mi no ri ty of cases, how eve r, the just ices felt i t necessary to de ma ndsureties of the peace (see table 1).

Poor Law and Labour Offenses

Another group of offenders violated the laws which regulated the conductof the l abour ing poor , as the unproper t i ed and wage-dependent pa r t o f the population was usually called. It is one of the characteristics of thecriminal law until well in the nineteenth century that some parts of i tserved explicitly as a tool of social control over the lower classes. The actsregulat ing the re la t ions between employers and workers (master and ser

vant law) and the acts connected with the poor law were closely related, because they were part of one social policy, were directed against the same part of the population and stemmed from common ideological roots.

Poverty was regarded by contemporar ies as a main cause of cr iminal i ty(48). The att i tude towards poverty, however, was determined by the belief in individual responsibi l i ty. Idleness and moral weakness were thought to

be the roots of poverty, unless obvious reasons such as illness or age werefound, and hence all measures against poverty had to combat these evils.

ldleness is the root of all evil , and properly punishable by corporal

correct ion and constra ined labour. (49)

12


8/6/2019 hsr1990_229

11/32

This rigid ideology had been central for the establishment of houses of cor rec tion in th e late six tee nth an d early se ve nte ent h cen tur ies (50). Together with the poor relief system which obliged the parishes to care for the ir dis abl ed poor, the hou se s of cor rec tion ( toge the r wit h ot her coer

cive ins t ruments as the workhouse) const i tuted a social pol icy which wasdesigned to combine aspects of re l ief and punishment . I t i s worth not ic ingthat the basic idea of correct ion through imprisonment which inspired the pr ison reformers in the la te e ighteenth and ear ly nineteenth centur ies canalready be found in the ideology of this early prison system. According tothis ideology, an act of 1610 directed the justices of the peace that idleand disorder ly persons shal l be sent to the house of correct ions (51) Dueto the vague definit ion of this act, the justices held strong discretionary

pow ers in the t rea tme nt of va r i ou s kin ds of del inq uen ts f rom the lower c lasses. A wo ma n was com mi t te d to the Cle rke nwe ll h ouse of correct ion in1752

...for be in g an idle an d dis ord erl y perso n lay ing out of Nigh ts pilfe ringan d not bei ng able to give an acco unt of get tin g an hon es t l iveli hood. (52)

What seems obvious f rom this descr ipt ion is that she was a vagrantwithout employment; also, she was suspected to be a casual thief. I t may aswell be that sh e was im pr is on ed bec aus e she was de em ed a pro sti tut e, anoffence wh ic h was not out law ed explicit ly. Fo r a lawful imp ri so nm en t, i t

was sufficient to co mm it her as an idle an d dis ord erl y pe rs on . H owe ver ,over the e ighteenth century there was a tendency towards a more precisedef ini t ion of the offenses which could be punished by imprisonment in ahou se of cor rect ion (53). In the Essex hou se s of cor rec tion , leav ing thefamily chargeable to the par ish, having bastard chi ldren who were chargeable to the parish, begging and being a vagrant were the most frequentcharges (54). A total percentage of 40 p.c. of the prisoners were committedfor offending against the vagrant act in some way (see figure 2).

Mas ter an d serv ant law also includ ed provis ions for pu ni sh in g labo ure rs

for certain offenses. The justices of the peace had been responsible for thesupervis ion of labour re la t ions s ince the la te middle ages; an El izabethanact of 1563 was sti l l the basis for the justices ' acting in the eighteenthcentury (55). Although this was not a typical case in the eighteenth century, a m a n was comm it te d to th e ho us e of cor rec tio n for a sho rt period onchar ge o f l iv ing wi thou t e m p l o y m e n t s (56) .Usua l ly, mas t e r s and employers came to jus t ices in order to complain about their workers who werede em ed idle or had left the ir jo b, thus br ea ch in g thei r contra ct . In suchcases, justices were allowed to send the offenders to the house of correction. 13 p.c. of th e pr is on er s in two hou se s of cor rec tion in Essex we recom mit te d for these offenses . Em be zz le me nt a t the wor kpl ace whi ch wasfreq uent especial ly in th e text i le indu str y wa s puni sh abl e by th e jus t ic es

13


8/6/2019 hsr1990_229

12/32

wit h im pr is on me nt in the ho us e of cor rec tion or a fine. In two Essexhouse s of correct ions , only 3 p .c . of the pr iso ners , pre dom ina nt l y wo me n,had been charged with embezzlement ; in Gloucester, where the text i leindu str y was mo re impor tan t , mo re than 10 p.c . had been com mit ted for this offence (57). A larger pr opo rt io n of cases we re prob ably puni sh ed withfines.

On ly in a mi no ri ty of cases, im pr is on me nt in the hou se of corr ecti onwas actual ly appl ied. As the Gent leman's Magazine observed in 1769,

.. .magistrates and parish officers are cautious of inflicting this punishment, but rather chuse to let i t hang in terrorem over the heads of theoffenders. . . (58)

Acting as an exemplary punishment, i t achieved its purpose: the disciplining of the labouring poor.

On the other hand, the jus t ices were a lso avai lable for complaints brought by labourers against their masters; in fact, this kind of complaintsout nu mb er ed in the jus t ices ' note boo ks thos e bro ugh t by emplo yers . William Hunt decided mostly in favour of labourers who had been dismissedcontrary to the contract, or whose masters refused to pay their wages.

14


8/6/2019 hsr1990_229

13/32

Property Offenses

Th e th ir d ma in g ro up of offenses whi ch consti tuted abo ut 30 p. c. of th ecases brought before the jus t ices were proper ty cr imes. Offenses of this branch of delinquency constituted the great majority of cases tried in the

criminal courts. But there was an important distinction between two different kinds of property crimes: theft ( larceny), burglary, robbery andfraud we re reg arde d as felonies and had to be tried on in di ct me nt in criminal courts; this category of property crimes will be called felonious

property crimes in this article. The theft of wild animals (poaching),woo d theft an d theft of vege tabl e pro duc ts not yet harves ted, on th e othe r hand, were not regarded as fe lonies but as misdemeanors , subject to thesummary jur isdict ion of the jus t ices of the peace act ing alone or in pet tysess ions . This category of proper ty cr imes wil l be cal led summary pro

pert y cr im es in this artic le. The re is an ot he r poin t of disti nctio n h ere : no tma ny people , ma y be not even those who com mit ted these cr im es, woul dhave disputed that larceny or burglary was i l legal, whereas the theft of wi ld animals or vegetable i tems was not regarded cr iminal by considerable par ts of th e po pu la ti on . In fact, the definit i on and pros ecu tio n of the seoffenses was a field of conflict in rural society. But the lines of conflict randifferent ly depending on whose proper ty interes t was a t s take.

Th e ga me laws ha ve long been den ote d as the prin cipal ex am pl e of classlegislation an d class jus tic e pro tec tin g th e privileges of a selfish rul ing

class (59). Th e clic h of jus tic es of th e pea ce as par tial an d rut hl es s executors of the arbi t rary game laws was widespread al ready in the e ighteenthcen tur y (60) . I t was the mi ddl in g sort ( farm ers and yeom en) , w h o lead this protest (61). Although the game laws were clearly unjust, the importanceof these laws and the role of the justices in rigorously executing them have

been e xaggera ted, as Mun sc he (1981) has show n. Of course , the re wer eexamples of arbi t rary jur isdict ion by just ices; the evidence f rom the notebooks, however, impl ies that jus t ices t reated cases of poaching in thesame rather lenient way as they did in other cases. Above all , offensesagainst the game laws were not frequent in the everyday work of the justices: only 2 p.c. of all cases in the notebooks and only 0.9 p.c. in thehouses of correction were related to the game laws. Of these cases, someended with an acquittal , some resulted in fines, or if the offender could not

pay, wi th a co mm it ta l to th e hou se of cor rec tio n. The in fa mo us Black Ac t dec la ri ng certa in f or ms of po ac hin g a capital offense was ver y sel domused.

Much more frequent was wood and vegetable theft . Wood theft was the principal mass delict in traditional society, committed by people from thelabouring poor for obvious reasons: economic want . Together with other customs such as gleaning, wood gather ing was in the t radi t ional rural society a customary r ight of the poor which became more and more res t r ic

15


8/6/2019 hsr1990_229

14/32

ted and made cr iminal dur ing the ear ly modern per iod when the moraleconomy was a t tacked (62) . Contrary to the game laws, there was no

public protest against this criminalization, since this t ime, both gentry andfarmer stood together in defending their property interests against the un-

propertied classes. If there was protest by the poor, i t took the form of collective and riotous actions which were designed to preserve traditionalcustomary rights (63). Wood theft and theft of vegetable i tems was subjectto a fine of 5 shilling or, in default, of a short imprisonment in the houseof cor rec tio n. In the sam ple from Essex hous es of corr ecti on, 12 p.c. of thedelinquents were committed for this offence (see figure 2); 20 p.c. of thecases brought before William Hunt, who was acting in a rural area, belonged to thi s cat ego ry of pr op er ty deli nq ue nc y. Fin ally , ab ou t a fifth of allcases dealt with by the fives justices were felonious property crimes. Mostof th es e cases wer e theft s of ite ms of ver y sma ll v alu e as food, textile s an dhous ehol d i tems valued un de r 12 pence . Thef ts of valuables , robber ies ,

burglaries and special types of theft such as horse theft were less frequent.As mentioned above, in the eighteenth century there were no police tocarry out investigations and no public prosecutor to bring a suspected crimin al to trial ; instead, the bu rd en of cr imi nal pr ose cuti on was entire ly leftto the victim. It is fair to assume that under these circumstances the pro

portion of unsolved and un prosecuted cases was considerably higher thanit is today.

If the victim expressed a suspicion, i t was the justices ' responsibili ty toorder the apprehension of the suspected felon, to hear the victim, witnessesand accused and to commit or bail him or her for trial . Under no circumstances was it allowed for the justices to acquit a suspected felon, becauseall cases of felony had to be determined in court . Nevertheless, the pretrial

process was of great importance for the working of the whole criminal jus tic e syste m. Th e abs enc e of an efficient system of cri min al pr ose cuti onme an t tha t th e reali ty of eigh tee nth cen tur y law enfo rc em en t differed considerably from its design. Even if the delinquent was known, a large pro

portion of cases never reached the final step of prosecution, the trial, for a

number of reasons which will be discussed in the following part .

The In formal Trea tment o f De l inquency

At all times, it is basically the victim's decision to prosecute or not to prosecu te a pr oper ty cr i me; but th is discre t ionar y power was considerabl ygreater in the eighteenth century. Very often, the victim chose not to prosecute the offence even if the offender was known. Attending a trial inorder to give evidence against the accused was an expensive and time-consuming affai r which deterred many people , especial ly f rom the lower classes. H en ry Fielding, a jus tic e of the peace an d early police refor mer ,complained that due to the costs of prosecution a poor victim

16


8/6/2019 hsr1990_229

15/32

... must be a Miracle of public Spirit if he doth not rather choose toconceal the Felony, and sit down satisfied with his present loss... (64)

Ma ny vict ims pref erred t he com po un di ng of a pr oper ty cr i me to . a cr iminal prosecution, if the stolen goods could be recovered in this way. In

th e capital , advertisements in th e ne ws pa pe rs we re a frequen tly used medi um for com mu nic at i on bet ween the vic t im a nd the thief . An ot he r reasonnot to delive r the cr im ina l to th e cou rt s wa s pub li c dis app rov al of a crimi na l law whic h inf l icted capi ta l pun is hm en t or t ra nsp ort a t i on for themere thef t of the proverbial s i lk handkerchief . In many cases , sympathywith the culprit 's fate or the fear of hostile reactions from the neighbourhood prevai led over the wish for punishment . This a t t i tude which contravene d the concept of exem plar y pu ni sh me nt s was wide spre ad in the e ighteenth century and prompted the cr iminal reformers to cal l for proport io

nal punishments (65) . In some extreme cases , v ic t ims whose ini t ia t ive resulted in a cr im ina l ' s exec utio n be ca me th e target of rio tou s act ion s or were even lynched by the mob (66).

What happened once the victim chose to report a felony to a justice of the peace? As stated above, the law directed the justices to commit or bailsuspected felons for trial; also, it was his task to bind the victim and thewitnesses over in order to make sure that they appeared in court to giveevi den ce. In reali ty, only in abo ut a quar te r of all cases of felo niou s pro

pert y crim es i t was decided to put the susp ecte d de li nq ue nt on trial . Th einfrequency of these cases leads to the impression that a zealous executionof the criminal law was not the justices ' main concern; the practise of lawenforcement was ins tead character ized by a very different pat tern in whichinformal ways of deal ing with del inquency were dominant .

Th e jus tice s used thei r discr etion t o deal with cas es of feloni ous offensesin various ways. If they regarded the suspected criminal as innocent, theysometimes acquitted him or she contrary to the law. In 1771, a chimneyswe eper and his ser vant wer e accus ed of a bur gl ar y by a ye om an . After some examina t ions Richard Wyat t d i scharged the two men , insuff ic ien tevidence appear ing against ( them). (67) In the same way, Henry Morr isdischarged a man accused of having stolen two pots of the value of 2-3 pence because the case seemed too trifl ing to him to justify a criminal prosecution (68). Even in a case of suspected infanticide, R.Wyatt discharged the woman (69). About every sixth case of felonious property crimes inthe sample was dismissed by the jus t ices .

In the decision-making process which took place when a case was bro ugh t before a jus t ic e of the peace, the com pl ai na nt co nt i nue d to play adecisive role. The notebooks show that the justices suffered and even encouraged the opponents to come to informal set t lements , as they were used

and expected to do in cases of breaches of the peace. Such informal settlements could be found at several steps of the prosecution process. They

17


8/6/2019 hsr1990_229

16/32

could be reached after the justice had granted a warrant at the complaintof the victim, but before the examination actually took place. In the notebook of Henry Norr is for example, no hear ing and no outcome wasrecorded in 46 p.c. of the cases of felonious property crimes. We can assume that a considerable proportion of these cases were sett led by directnegot ia t ion between complainant and accused. In these cases , the warrantissued by the justices could serve as a means to threaten the delinquentwith a formal cr iminal prosecut ion.

Informal set t lements dur ing the hear ing of the par t ies before the jus t ices were also common. In the work of William Hunt, they made up half of the cases. Even if the justices had already send the parties to trial , op

por t uni t ies for a set t l ement re ma ine d. I f the com pla ina nt decided to set tlethe case outside court, justices did usually not insist on the forfeiture of therecognizance which the complainant had entered into (70) .

Wh ic h factors wer e imp or ta nt for th e decision wh et he r a case was to besettled informally or be prosecuted according to the law? An analysis of the notebooks may help to answer this question. A typical case of a pro

perty crime which ended with an informal agreement can be found inHunt ' s no tebook:

Granted a warrant on the complaint of Mary Amor of Market Lavington against Th om as Hu nt and El izabeth Co le ma n of same for tak ingand carrying away cer ta in goods, the proper ty of the complainant . Upontheir appearance, they promised to res tore the goods. Upon which theyagreed it. (71)

That the opponents were l iving in the same parish and knew each other had wit hout any dou bt an imp ort ant impact on th e outc ome . Th e propensity to br in g a pers on to trial w h o lived i n the ne ig hb ou rh oo d was of cou rs every low; a t the same t ime, informal set t lements worked bet ter in thosetradi t ional communit ies where the social control the del inquent could besubmit ted to was tough.

If th e social status of the com pl ai na nt was con side rab ly hig her tha n tha tof the defen dant , inf orma l set t leme nts took ra t her the char acter of a pardo n tha n of an ag re em en t, as in the followi ng ex am pl e of a wood theftwh ic h th re e boys had co mm it te d in th e forest of a gent ry la nd ow ne r:

. . . upon their humbling themselves to Mr Wadman, and their promising not to offend in l ike nature any more, they were forgiven by thec o m p l a i n a n t s ( 7 2 )

Th e def enda nt ' s submi ssion to the aut hor i ty of the com pla ina nt and thecomplainant ' s use of mercy and benevolence re inforced the unequal nature of social relations between persons from different social classes. Thesa me is t ru e for the m an n er in whic h just ic es of the peace ad mi ni s te r edthe summary jur isdict ion. As ment ioned above, when they deal t wi th offenses against the poor law, the labour laws and other offenses which were

18


8/6/2019 hsr1990_229

17/32

co mm it te d mai nly by the labo uri ng poor, they inf l ic ted penal t ie s only in a

part of all cases, thereby giving an example of their benevolence and at the

same t ime enhanc ing the i r au thor i ty.

It is r isky to draw conclusions from the sketchy evidence which the

notebooks offer ; however, i f one compares the propensi ty of the jus t ices to

inflict for ma l sanc tions in cases of felo niou s pr ope rt y cr ime , an in ter est ing

pa t te rn e merge s which under l ines the impo r ta nce o f co mm un i t y. Th e lo

west proportion of cases in which formal sanctions were taken can be

found in William Hunt 's Notebook (see figure 3) (73). The area in Wilts

hir e in whi ch he was l iving was pur ely ag ra ri an an d had kept i ts tra dit ion alsocio-economic s t ructure unt i l mid-eighteenth century; the same is t rue for

the part of Kent where William Brockman was justice of the peace at the

beginning of the e ighteenth century. Richard Wyat t , who inf l ic ted formal

sanctions in about 40 p.c. of the cases of felonious property crimes, l ived in

an area of Sur rey whi ch was situat ed n ea r Lo nd on an d saw lively traffic on

tu rn pi ke s an d on the Th am es . Al tho ugh mo st of the perso ns he had to deal

with ca me from two adjac ent par is hes , a m on g those he send to t r ia l we re

pr ed om in an t l y non-re sident s . Final ly, Hen ry Nor r i s , w ho l ived only few

kilometers off the boundaries of the metropol is , he showed the highest propensi ty to apply formal sanct ions in cases of fe lonious proper ty cr imes.

19


8/6/2019 hsr1990_229

18/32

These f indings support the hypothesis that t radi t ional communit ies withtight social relations were fitted best for an informal mode of law enforcement. Some historians distinguish two different concepts of law enforcement existing side by side (74): that of the community on the one sidewhich tried to sett le disputes and conflicts within the community; and thatof the state on the other side which dealt only with those cases which couldnot be settled successfully by the community because the limits of acceptable behaviour had been exceeded or because the delinquent stood already outside the community. As far as justices of the peace are concerned, i tis possible to say that their mode of law enforcement represented an com

bination of these two concepts. I t is an important result of the analysis of their work that they suffered the conflicting parties to uti l ize elements of the formal criminal law (such as warrants and recognizances) for a strategyof informal sett lements. Acting in this flexible way, they made themselvesavailable as a platform for sett l ing conflicts (75).

Not in every case was the informal use of the criminal law was designedas an act of reconciliation between the complainant and the defendant.Often, the complainant or the jus t ice intended to punish the del inquentwi th ou t inflicting the wh ol e scale of for mal crim ina l sanctions . Thi s was

particularly the case with felonious property offenses. We have alreadyseen tha t th e cruelty of th e dea th p enal ty det err ed som e vict ims fromraising a formal accusation against a delinquent who had committed acapital crime. One possibili ty to avoid this problem was to reduce the valueof th e stolen goods un de r th e a m ou n t of 1 shill ing , the reb y alter ing a gran dlarceny which was a capital crime into a petty larceny which was not acapi ta l cr im e. This beh avi our was co mm on in the e ighteenth century. Infact, one of the princi pal ar gu me nt s of the re fo rme rs of the cri min al lawwas that capital punishment in the minor offences operate powerfully in p r e v e n t i n g conviction. (76) Th e ref or me rs crit icized the trad itio nal criminal tr ial at common law in general as inappropriate, inefficient and toouncertain: only half of the accused were found guilty (77). In cases of smalltheft , a sum m ar y conv icti on with a sho rt perio d of im pr is onm en t as i t wasusual in cases of summary property offenses seemed to be more appro

pr ia te . Al though the summary jur isdict ion for pet ty thef t was int roducedonl y in 1850, just ices of th e peace did co mm it del inq uen ts to the hou se of correct ion without proper t r ia l throughout the e ighteenth century. Theextent of this informal punishment is difficult to assess. Beattie hasmaintained that this practise fell off sharply in the second quarter of theeighteenth century and did not play an important role afterwards (78);however, the evidence from the houses of correction calendars gives another impression. Of 34 del inquents who were commit ted for fe lonious pro

perty crimes to two houses of correction in Essex between 1771 and 1775,only 17 were put on trial . These findings correspond with those of P.King

20


8/6/2019 hsr1990_229

19/32

who analysed the Essex houses of correction calendars of the years1753-1759 (79). The reason for such imprisonment without trial was openlystated in th e prison cale nda rs as in the case of Ja ne Sutton w ho was comm i t t e d

... to be corrected and held to hard labour for the space of one Calendar Month being duly convicted of being guilty of Stealing of two Shirts of small Value. (80)

Th e jus tice s also com mi tt ed casual thie ves and pilferers to the hous e of correction as idle and disorderly persons. 17 p.c. of the prisoners in theMid dle sex hou se of corr ectio n in Cl er ke nw ell betwe en 1750 and 1752 wer ecommit ted under this charge. Some of them were surely commit ted for theft , as on e exa mpl e reveals: A m an called Ro be rt Nest was accused of ha vi ng stolen s om e clothes . Th e jus tic e co mm it te d the suspected thief to

the house of correction but acquitted him on the same day, apparently because the evidence did not warrant a formal accusation. On the next day,how ev er, Ro be rt Nest was convi cted to har d la bour in the hou se of correction because he was an idle and disorderly person. (81)

Thi s wa s the oth er face of th e infor mal tre at me nt of del inqu ency : whereas offenders w h o wer e res ident and had social t ies within t he co mm un it ycould hope to be dealt with in a rather lenient way, social outsiders, strangers and vagrants were l ikely to be subjected to arbi t rary punishments .

The Implicat ions of Informal Set t lements

Th es e finding s abou t the wo rk in g of the eig hte ent h centur y law enforcement on the local level cannot be without consequences for our unders tanding of the whole cr iminal jus t ice system.

Firstly, the dangers of quantitative analysis based on the records of thecourts are stressed. It is not possible to quantify the percentage of caseswhich were dealt with informally; however, i t is necessary to use data fromthis high level very cautiously. This is not only a problem of numbers; also

the character of the criminal justice system needs to be considered. If aconsiderable proportion of property offenders were not put on trial buttreated informally during the pretrial process, the historian's focus on thework of the courts distorts the real character of a criminal justice system inwhi ch f lexible for ms of deal ing with off enders wer e muc h mo re f requentthan commonly assumed. Selectivity was not only crucial at the level of thecr iminal courts but a lso dur ing the pretr ia l process where the jus t ices together with the vic t ims decided whether a del inquent should be put ontrial or not. Th e expe rien ces people had with th e cri min al jus tic e systemwe re abov e all de te rm in ed by th e wo rk of jus tic es of the peace. This is tr ueall the more as only a minority of offenses in the eighteenth century werefelonies . The typical e ighteenth-century del inquent did not commit a ca-

21


8/6/2019 hsr1990_229

20/32

pital crime but a misdemeanour as a wood theft or an assault, and he did

not enc ou nt er th e cr imi nal justi ce system in the cou rt -r oom but in the

house of the justice of the peace.

III. The Paternalist Concept of Authority

Th e results un de rl in e th e role of the jus tic es of the peace in eighte enth -century law enforcement. The way they exercised their judicial powers isnot only tell ing for the character of law enforcement but also for their concept of social relations and authority in general. The label which describ es this conc ept best is pat ern ali sm (82). Pa ter na lis m me an s an inega-li ta rian , hier arc hia l social order in whi ch the lesser ra nk s are su ppos ed to

be dependent on the guidance of their super iors who are the naturalrulers. At least in theory, paternalist authority was not based on force andrepress i on but on ha rm on y and consens us. Con fro ntat ion and Confl ic t

between the rulers and the ruled had to be avoided:

...it is the Duty as well as the Interest of every Civil Magistrate, toen de av ou r to re nd er himself beloved and popular. . . ; and if th er e aremany who are more hated, and consequently less obeyed by the people,it must be owing to their own ill Conduct. (83)

In what respect did this paternalist concept influence the justices ' role ineighteenth century law enforcement? Basically, leniency rather than rigorous enforcement of the cr iminal law was character is t ic of their judicia lwork. As we have seen, a considerable percentage of all offenses wentunpunished. Whether a del inquent was to be t reated lenient ly or whether he was prosecuted according to the law depended largely on the justices 'mer cy. The impor tan ce of benevolenc e and merc y in dispens ing just i ceunderl ined the enormous discret ionary power held by just ices of the peace.As D. Ha y has poin ted out, people may even accept despot ic pow er w he nit comes from the 'good king' (84). The lenient way the justices of the

peac e exercised thei r judi cial wor k reinforc ed and enh an ce d the ir aut hority over the people.

This would help to explain the relative stability of English Society in theeighteenth century. But there is another aspect of the justices ' mode of lawenf or ce me nt whi ch is crucial in this con text . By dis pen sin g with officialrules and applying the law in a flexible way they made the criminal justicesystem available for the interests and intentions of the people. As we haveseen, the victims of property crimes were given an important role in thedecision-making process which was not intended by the official criminal

law. In cases of breaches of the peace, the justices sacrificed their time tomediate the private disputes of their inferiors. By doing this they underlined the image of the paternal ruler who cares for the peace and con-

22


8/6/2019 hsr1990_229

21/32

sensus of the community. About two-thirds of a l l cases Henry Norr is hadto deal wi th we re such qua rr els ma ny of wh ic h took place a m on g th elabour ing poor.

To what extent was the criminal justice system as represented by the jus tic es of the peace avai lab le for th e lower r a nk s of society? Fir st of all, because the information about the social status given in the notebooks issomewhat fragmentary and vague, the statist ical findings can only give avery rough impression. However, the s ta t is t ical map shows that whereasthe labouring poor made up the majority of the accused, they formed onlyabout a thi rd of the complainants . Farmers , t radesmen and gent lemen, onthe other hand, appear more f requent ly in the notebooks as complainantsthan as defendants . In most cases of proper ty offenses , the complainantwas of a higher status than the accused, as can be seen in figure 4. Only ina small minority of the cases in Hunt 's as well as in Wyatt 's notebooks, the

vict ims of proper ty cr imes came from the labouring poor. This is hardlysurprising, since the poor tended to steal from the better-offs. One should

bear in mi nd , howeve r, that am on g thes e pr op er ty offenses th er e was aconsiderable proportion of offenses such as wood theft which were a matter of conflict within the rural society. Here, as with the poor law and theacts regul ati ng th e lab our relations , the jus tic es enfo rced a cr im in al lawwhich was designed to protect the interests of the upper classes.

But the labouring poor did not meet the law solely as defendants. Peoplefrom the lower classes went to the justices to pursue their interests againstopponents from the same and from higher ranks. In most cases of privatedisp utes , assaul ts an d insults, the social sta tus of th e op po ne nt s wa s roughly equal (see figure 4). Most of them came from the labouring poor. The

jus tic es ' availabili ty for the me di at in g of conflicts a m on g the lo wer classesdetermined their public image to a large extent (85).

Very often, peop le from the labo uri ng po or co mp la ine d abo ut unju st or unlawful treatment by their employers or by the parish officers who ranthe poor re l ief system. As ment ioned above, complaints brought by labourers against their employers were more frequent than vice versa. In this

regar d th e justi ces actually prov ided a po or ma n' s system of jus tic e (86).Th e jus tic es wer e influen ced in their judi cia l be ha vi ou r by a popu la r idealwhich stressed their role as fatherly protectors of the poor. In eighteenth-century wri t ings , jus t ices were descr ibed as the poor Man's hope, the poor Man's Fr iend (87) , and they were admonished to adminis ter impart ia l

jus t ice (88) when employers complained about their labourers and viceversa. In fact, i t was a part of the justices ' task to control the working of the poor law system and to supervise labour relations; yet, since the lawitself was heavily biased against the labouring poor, actual justice andequality before the law was a mere ideology.

Final ly, an analysis of the jus t ices ' wor k exemplif ies the im po rt an ce of the middling sort as a group of society which took advantage of the cri-

23


8/6/2019 hsr1990_229

22/32

mi na l justic e system, especially in the prosec utio n of pro per ty offenses.Due to the focus of the history from below approach on the labouring

poor, the middling sort although particularly strong in English society hasnot received due attention by historians of crime for many years (89).

Taking all findings together, it is possible to come to a balanced butsomewhat contradictory conclusion about the character of the e ighteenth

century criminal justice system on the crucial local level. The criminal lawwas not just an instrument to punish offenders and to protect people's

safety; i t was also a platform for conflict and compromise between individuals and groups in society. Although the criminal law was controlled by asmall ruling class, it did not serve their interests exclusively; it was avai

lable to people from the middling sort and, to l imited but neverthelessremarkable extent , f rom the labouring poor. The just ices ' pract ice of law

enf orc eme nt ref lected their paternal is t concept of auth ori t y and accountsfor the relative acceptance of their role by the public. If one looks to the

ins ti tu tio nal chan ges of th e late eigh teen th an d early ni net ee nth centu ry,the persistence of this traditional concept of law enforcement and the almost unequivocal rejection of paid stipendiary magistrates and a profes

sional police force by the English public is striking. Public criticism of thear is tocr at ic rul e by just ices of the peace rem ain ed ra re thr oug hou t the

24


8/6/2019 hsr1990_229

23/32

eighteenth century when other aspects of the cr iminal jus t ice system wereheavel y crit iciz ed. Alt ho ug h m a ny factors, mos t imp or tan tl y th e fear of aFrench-style police, contributed to this att i tude, one is tempted to regardthe role of the justices of the peace in the criminal justice system as a story

of success rather than failure.

Notes

I would l ike to thank Bob Shoemaker for his comments on an early draftof this article and him and John Styles for their readiness to discuss thesubject of this article and to give me crucial support.

(1) L.Radzinowicz (1948, vol .1 , p.ix).(2) The mos t co mp re he ns iv e review ar t ic le is J.Innes and J.Styles

(1986). Cf. D.Blasius (1988), J . L . McMuIlan (1987) a n d J.A.S/wrpe(1983b) .

(3 ) D.Hay. P.Linebaugh e.a. (ed.) (1975), In tr od uc tio n, p. 13. F or a sh ortcrit ical assessment see J.Styles (1988) .

(4) See e.g. l.R.Chrisiie (1984).(5) See J.A.Sharpe (1985); J.Brewer and J.Styles (ed.) (1980), Introduc

tion. Parts of this article have also been published as: Popular Attitudes Towards the Law in the Eighteenth Century, in : M.Fi tzgerald(ed.) , Crime and Society: Readings in His tory and Theory, London1981, pp.29-36.

(6 ) D.Hay (1975b, p.35).(7) E.P.Thompson (1963, p .59, p .64) . Cf . about E.P.Thompson:

T.L.Chapman (1980); E.K.Trimberger (1984). It has to be stressedthat he was able to build on work done much earlier by other his tor ians . See J.L.Hammond and B.Hammond (1911); K.Marxhimself deal t wi th cr ime and vagrancy in pre- and ear ly- industr ia lEngland as a resul t of economic gr ievances .

(8 ) D.Hay, P.Linebaugh e.a. (1975).(9 ) Hay (1975b) .(10) E.P.Thompson (1975, p.240ff).

(11) Se mi nal for the con cep t of social crim ina lit y: E.J.Hobsbawm (1972);cf. J. Rule (1979).

(12) See e.g.: E.Billinge (1985); R.Williams (1985); B.Bushaway (1983); J.Carter (1980); R.A.E.Wells (1984) .

(13) See especially: F.Snyder and D.Hay (ed.) (1987) . Other major newworks on this field: K.D.M.Snell (19 85) ; for th e 16th an d 17th centuries, see: A.L.Beier (1985); P.Slack (1988) .

25


8/6/2019 hsr1990_229

24/32

(14) Thompson (1975). Cf. th e critic ism in: E.Cruickshanks/H.Erskine- Hill (1985); J.Broad (1988).

(15) Cf. C.Emsley (1987), p.3. The best work on poaching and the gamelaws has been done by P.B.Munsche (1981).

(16) J.Styles (1983 a, pp . 173-210).(17) It mu st be stresse d tha t Thompson has come to a revision of his once

clear-cut picture of the eighteenth-century legal system. Already in1975, he dre w a mor e complex and cont rad ict ory conclu sion inwhich he regarded the rule of law as a cultural achievement of universal significance,. . . an unqualified human good. (1975,

p.265f.).(18) J.H.Langbein (1983, p.97, pp.114f).(19) P.King (1984b, p.33).(20) Th is ma y original ly stem from E. P. Th om ps on 's disli ke for any kind

of co un ti ng whi ch he has sho wn e.g. in the standard -of- living debate.See Thompson (1963, chpt.10).

(21) SeeEmsley (1987), chp t .2 ) ; lnnes/Styles (1986, pp. 388-395); E.Monk-konnen (1985).

(22) J.M.Beattie (1986, p.199).(23) D.Hay (1982). Cf. the crit ical comments by Jnnes/Styles (1986,

pp.391-394).(24) An ex am pl e can be foun d in the Essex hous es of corr ectio n cale ndar s

(Essex Record Office Q/SBb/223, 11th November 1760).(25) Jnnes/Styles (198 6, pp. 401 f).(26) Beanie (1986). There is a lengthy review of this book in Innes/Styles

(1986, pp.413-418).(27) Beanie (1986, p.620); for the history of transportation see: R.Ekirch

(1988).(28) Beanie (1986, p.619).(29) See P.King, Review of N.Landau, The Justices of the Peace, in: Cri

minal Justice History 7/1986, pp.184-187.

(30) Beanie (1986, p .6/7) .

(31) Take, for exa mpl e, the following sen tenc e by Sir George Onesipherus Paul (Considerat ions on the Defects of Pr isons and Their PresentSystem of Regulat ion, London 1784, p .50) , pr ison reformer in Gloucestershire: Few man have been hanged for a felony, that might notha ve been saved to the co mm un it y by cor rec tion of a forme r misd e m e a n o u r s

(32) Impor tan t con t r ibu t ions a re : J.Sharpe (1980); K.Wrightson (1980); A.Macfarlane (1981); R.B.Shoemaker (1985).

(33) J.R.Kent (1986).(34) Stil l fu nd am en ta l is B.Webb and S.Webb (1906). Cf. E.Moir (1969).

P.Wettmann (1987) ha s dealt wi th th e wo rk of th e jus tic es of th e


8/6/2019 hsr1990_229

25/32

peace on the bases of R.Wyatt 's and W.Hunt 's notebooks which aretwo of the main sources of this article, too. Unfortunately, his statist ical analysis is ra ther f ragmentary.

(35) T.A.Green (1985); J.S.Cockbum an d T.A.Green (ed.) (1988).

(36) See also M.DeLacy (1986) .(37) Fo r the tra diti onal view see Radizinowicz (1948-1986); one of thestudies put t ing forward the marxis t argument most powerful ly isM.Ignaiieff (1979); appr oa ch in g the refor mer s f rom the inte l lectualangle: R.McGowen (198 6); for a r ece nt case -st udy see M J.D.Roberts(1988) .

(38) D.Hay a n d F.Snyder (ed.) (1989).(39) Fo r a histo rian w ho tend s to stress th e ch ang ing cha rac ter , see:

D.Philips (1980); taking revisionist positions are: C.Emsley (1986)(this article is identical with chapter 4 of Emsley (1987)) and J.Styles(1987) . For e igh teen th-c entu ry a t t emp ts of pol ice-ref orms see J.Styles(1983b) .

(40) S.H.Palmer (1988, pp.8-9). Also stressing the role of disorder: R.K.Vogler (1987); D.S.Eastwood (1985).

(41) Al th ou gh Pa lm er ma ke s i t clear in the preface (pp.8-9) tha t cr im e isnothing a historian of the police has to deal with seriously and dis

penses with consul t ing recent s tudies on cr ime and cr iminal jus t icethoroughly, he cannot but employ the f indings and arguments of thehis tor y of cr ime himself . Th e Ratcliffe Hig hw ay Mu r de r s of 1811,for example, are presented as a trigger of police reforms in London(p. 164).

(42) Two of th em have bee n publi she d: E.Crit tal (ed.) , Th e Jus tici ng Notebook of William Hunt, 1744-1749 (Wiltshire Record Society 37),Dev ize s 1982; E. Sil ver tho ne (ed.), Th e Dep osi tion Book of Richard Wyatt J P , 1161-1116 (Surrey Record Society 30), Guildford 1978;unpubl i shed : Notebook of Henry Norris, 1730-1741 (G re at er Lo nd onRecord Office , Lon don , G.L .R. O. M 7 9 / x / l ) ; Noteboo k of William

Brockman, 1689-1721 (Brit ish Li bra ry, Ad d. MS S 42598) an d Note

book of Ralph Brockman, 1770-1781 (British Library, Add.MSS42599) .

(43) Ca le nd ar of Clerkenwell Ho us e of Co rr ec ti on , Midd lese x, 1750-1752( G . L . R . O . M J / C C / R / 2 3 - 3 9 ) ; C a l e n d a r s o f Halstead a n d Newport Ho us es of Co rr ec tio n, Essex, 1761-65 & 1771-1775 (Essex Reco rdOff ice , Che lmsford , E .R.O. Q/SBb/218-282) . The sample con ta ins atotal of about 900 cases.

(44) J.Hawkins, A Ch ar ge of the Ju ry of Midd les ex, L on do n 1780, p.27.(45) W.Hunt, Case No.103 .(46) R.Wyatt, Case No.60.(47) R.Burn, Th e Justice of th e Pea ce an d Par ish Officer, 18th ed. Lon do n

1797, vol.IV p.l00 ff.

27


8/6/2019 hsr1990_229

26/32

(48) Most writers who contemplated about criminality began their

pamphlets with the problem of poverty. See most prominently

H.Fielding, An Enquiry into the Causes of the Late Increase of Rob

bers with some Pro posal s for Remed yin g this Gr ow in g Evil , Lond on

2nd ed. 1751; P.Colquhoun, Treatise.

(49) M.Dawes, An Essay on Crimes and Punishments, with View of, and

Commentary on Beccaria, Rousseau, Voltaire, Montesquieu, Fielding

and Blackstone, London 1782, p.81.

(50) SeeJ.Innes (1987); P.Spierenburg (1984).

(51) 7Jac.l.c.4.

( 52 ) G . L . R . O M J / C C / R / 3 9 , Clerkenwell House of Correction Calendar,

October 1752.

(53) These definitions were laid down in the vagrant act of 1744,

17.G.11 .C .5.

(54) Co nt ra ry to the ot he r offenses, havi ng bastar d chi ldr en was not pu

nishable in most cases; many fathers of bastard children were only

co mmi tt ed to hous es of cor rec tion beca use they were una bl e or un

will ing to pay for their children's maintenance.

(55) 5 El.I.c.4; cf. J.Rule (1981); R.Malcolmson (1981).

(56) E.R.O. Q/SBb/280, Newport House of Correction Calendar, Apr i l

1775.

(57) J.R.S.Whiting (1976, pp.228f).

(58) Gentleman's Magazine 39(1769), p.372.

(59) See e.g. Hammond/Hammond (1911, p.!86f.); Hay (1975a).

(60) See e.g.Gentlemaivs Magazine 21(1751), p.l 12, 40(1770), p.222.; Dai-

ly Universal Register, 17 Nov 1785, p.2; W.Taplin, Observat ions on

th e Pre sen t State of th e G a m e in Eng lan d, Lon don 1772; S.Purlevent,

A Dialog ue between a Lawyer and a Count ry Ge nt le ma n upo n the

Sub je ct of th e G a m e Laws , Lo nd on 4th ed. 1775; cf. Munsche (1981).

(61) Eve n the lead ing lawyer of th e eig hte ent h cent ury, William Black-

stone, opposed the game laws. W.Blackstone , Commentar ies on the

La ws of En gl an d, 1765, vol.1 V, p.415f.

(62) E.P.Thompson (1971). See a contemporary's account of this process

in anonym, Observations on a Late Publication intituled Treatise on

th e Poli ce of th e Me tr op ol is , Lo nd on 1800, p.29f.

(63) See for an ex amp le : R.Bushaway (1981).

(64) Fielding, Enq ui ry , p. 110.

(65) See th e Rep or t fro m the Select Co mm it te e on Cr im in al Laws 1819

(British Parliamentary Papers, Cr im in al Law, Dub li n 1971, vol.1,

p.9f.); Colquhoun, Treatise, p.l4f.

(66) R.Paley (1983, p.77f).

(67) Wyatt, Ca se No . 122-125.

(68) Norris, 15 Se pt emb er 1732.

28


8/6/2019 hsr1990_229

27/32

(69) RWyatt, Case No.262-264.(70) See for the inf orm al use of re cog niz anc es Shoemaker (1985), p.128.(71) Hunt , Case No.283.(72) Hunt, Case No.299.

(73) In cases of s um m ar y cr im es, on the ot he r ha nd , he appli ed form alsanctions much more often. This could be explained by the fact thatthese sanctions - mainly a fine of 2-5 shill ing - were relatively harmless and he himself could control the outcome of the cases.

(74) See B.Lenman a n d G.Parker (1980); Wrightson (1980); cf. for theU S A : L.Rosen (1987).

(15) See J.A.Sharpe (1983a) .(76) Re po rt from th e Select Co m mi tt ee on Cr im in al Laws, p. 10 (P.Col qu-

h o u n ) .(77) Beanie (1986, p.428).(78) Beanie (1986 , p. 18).(79) P.King (1984 a, pp. 261 ff).(80) E .R.O. Q/SBb/270 , house of correction calendar.(81) G . R . L . O . M J / C C / R / 3 9 , Clerkenwell house o f correction calendar,

October 1752.(82) See N.Landau (1984, p.2f.); L.Stone a n d J.C.F.Stone (1984, p.412f.);

E.P.Thompson (1976, pp. l37ff) .(83) Gentleman's Magazine 8(1737), p.513.(84) D.Hay (1975b, p.39).(85) Se e e.g. Gentleman's Magazine, 2(1732), p.910. Th is was alre ady tr ue

in the sixteenth century. See W.Lombard, Eirenarcha or the Off iceof th e Justic e of th e Pe ace , L on do n (4t h ed.) 1599, p. 10.

(86) J.Davis (1984, pp.309-335).(87) J.Langhorne, The Country Just ice . A Poem, London 1774, Par t 2 ,

p . l l .(88) T.Gisborne, An En qui ry into th e Du t ie s of the Me n in the Hig her

an d Mi dd le Classe s of Society, Lo nd on 1795, p.41 8.(89) Th is ha s been cha nge d in recen t yea rs th an ks to th e wo rk do ne by

Peter King and others. Cf. also C.B.Herrup (1987).

Bibliography

Beanie, J.M. (1986) , Crime and the Courts in England 1660-1800, Oxford. Beier, A.L. (1985) , Master less Man: The Vagrancy Problem in England,

1560-1640, London. Billinge, E. (1985) , Rural Crime and Protes t in Wil tshire , 1830-1875, PhD

K e n t ( C a n t e r b u r y ) .

29


8/6/2019 hsr1990_229

28/32

Blasius, D. (1988) , Kriminologie und Geschichtswissenschaf t . Bi lanz undPerspekt iven interdiszipl inrer Forschung, in : Geschichte und Gesel lschaft 14, pp . 136- 149.

Brewer, J. a n d Styles, J. (ed.) (1980), An Ungovernable People. The English and Their Law in the Seventeenth and Eighteenth Centuries, Lond o n .

Broad, J. (1988), Whigs and Deer-Stealers in Other Guises: A Return toth e Or igi n of th e Black Act, in: Pas t an d Pre sen t 119, pp.56 -7 2.

Bushaway, R. (1981) , Groverly, Groverly, Groverly and al l Groverly: Cu-stum, Crime and Conflict in the English Woodland, in: History Today31 , pp .37-43 .

Bushaway, B. (1983) , 'From Cus to m to Cr ime ' : Woo d-G athe r ing in Eighteenth and Early Nineteenth Century England: A Focus for Conflict inHampshire, Wiltshire and the South, in: Rule,J. (ed.) , Outside the Law.Studies in Crime and Order 1650-1850 (Exeter Papers in Economic History 15), Exeter, pp.65-101.

Carter, J. (1980), Peasants and Poachers: A Study of Rural Disorder in Norfolk, Woodbridge.

Chapman, T. (1980) , Crime in Eighteenth Century England:E.P .Th omp son and the Confl ic t Theor y of Cr im e, in: Cr im in al Just iceHis tor y 1, pp. 139-157.

Christie, LR. (1984), Stress and Stabili ty in Late Eighteenth Century.Reflections on the Brit i tsh Avoidance of Revolution, Oxford .

Cockburn, J.S. an d Green, T.A. (ed.) (1988), Twelve Men Good and True:th e Cr im in al Trial Jur y in Engla nd, 1200-1800, Princ eto n.

Cruickshanks, E. and Erskine-HilL H. (1985), The Waltham Black Act andJacobitism, in: Journal of Brit ish Studies 24, pp.358-365.

Davis, J. (1984), A Poor Ma n' s System of Justice: Th e Lon do n PoliceCourts in the Second Half of the Nineteenth Century, in: HistoricalJournal 27, pp.309-335.

DeLacy, M. (1986), Prison Reform in Lancashire 1700-1850. A Study inLocal Adminis t ra t ion (Chetham Society, 3rd Ser ies , 23) , Manchester.

Dobson, CR. (1980) , Masters and Journeymen. A Pre-History of Industr ia l Relat ions , 1711-1800, London.

Eastwood, D.S. (1985) , Governing Rural England: Authori ty and SocialOrder in Oxfordshire , 1780-1840, PhD Oxford.

Ekirch, R. (1988) , Bound for America: Convict Transporta t ion, Crime andSociety in the Eighteenth Century, Oxford.

Emsley, C. (1986), Dete ction an d Pr eve nt ion : Th e Old English Police andthe New (1750-1900) , in : His tor ical Social Research/Histor ische Sozialforschung No.37, pp.69-88.

Emsley, C. (1987), Cr im e and Society in En gla nd 1750-1900, Lo nd on .Green, T.A. (1985), Verdict According to Conscience - Perspectives on the

Engl ish Criminal Tr ia l Jury 1200-1800, Chicago/London.

30


8/6/2019 hsr1990_229

29/32

Hammond, J.L. a nd Hammond, B. (1911), The Village Labourer. A Studyin the Government of England before the Reform Bil l , London (ReprintGloucester 1987) .

Hay, D. (1975a) , Proper ty, Au tho ri ty and Cr im in al Law, in: Hay, D. /Li ne-

baugh,P. /Thompson,E.P. (ed.) , Albions Fatal Tree, London 1975, pp.1763.

Hay, D. (1975b) , Poac hin g and the G a m e Laws on Ca nn oc k Chase, in :H a y, D . / L i n e b a u g h , P. / T h o m p s o n , E . P. ( e d . ) , A l b i o n s F a t a l Tr e e . C r i m eand Soc ie ty in E igh teen th Century England , Harmondswor th ,

pp. 189-2 54.

Hay, D. (1982) , War, Dear th and Theft in the Eighteenth Century: TheRecord of the English Courts, in: Past and Present 95, pp.117-160.

Hay, D. a n d Linebaugh, P. (ed.) (1975), Albion's Fatal Tree: Crime andS o ci et y i n E i g h t e e n t h - C e n t u r y E n g l a n d , H a r m o n d s w o r t h .

Hay, D. a n d Snyder, F. (ed) (1989), Pol ici ng an d Pro sec utio n in Britai n1750-1850, Oxford

Herrup, C.B. (1987) , Th e C o m m o n Peace: Par t i c ipat io n and the Cr im in alLaw in Se ven tee nth -Ce ntu ry Engla nd (C am br id ge Studies in Ear ly Modern Br i t i sh His to ry) , Cambr idge .

Hobsbawm, E.J. (1972), Social Cri mi na li ty , in: Bul leti n of th e Society for the Study of Labour History 25.

Innes, J. (1987), Pr iso ns for the Poor : English Bri dewells, 1555-1800, in:F.Snyder/D.Hay (ed.) , Labour, Law and Crime. An Histor ical Perspec

t ive , London/New York , pp .42-122 . Innes, J. a n d Styles, J. (1986), The Crime Wave: Recent Waitings on Cri

me and Criminal Just ice in Eighteenth-century England, in : Journal of Bri t ish Studies 28, pp.380-435.

Jenkins, P. (1986) , From Gal low to Pr ison? The Execut ion Rate in Ear lyModern England, in : Criminal Just ice His tory 7 , pp.51-72.

Kent, J.R. (1986), Th e Englis h Village Co ns ta bl e 1580-1642. A Social andAdminis t ra t ive His to ry, Oxford .

King, P.J.R. (1984a), Cr im e, Law and Society in Essex, 1740-1820, (P hD )C a m b r i d g e .

King, P.J.R. (1984b) , Dec i s ion-Makers and Dec is ion-Making in the English Criminal Law, 1750-1800, in: Historical Journal 27, pp.25-58.

Landau, N. (1984), Th e Justic es of the Peac e, 1679-1760, B erkel y. Langbein, J.H. (1983), Albion's Fatal Flaws, in: Past and Present 98,

pp .96-120 .Macfarlane, A. (1981), Th e Justi ce an d the M ar e' s Ale: La w an d Di so rd er

in Seven t een th Cent ury England , Oxford .McMullan, J.C. (1987) , Crime, Law and Order in Ear ly Modern England,

in: Bri t ish Jou rn al of Cri mi nol ogy 27, pp.252- 274.

Moir, E. (1969) , Local G ov er nm en t in Glo uce ste rsh ire , 1775-1800. A Study of th e Justi ce of th e Peac e (Pub lica tion of th e Bristol & G lou ces tershire Archaeological Society, Records Section 8), Bristol.

31


8/6/2019 hsr1990_229

30/32

Monkkonnen, E. (1985), Zu r Ve rwe ndu ng qua nt i t a t i ver Me tho den bei der his tor i schen Analy se von Kri min al i t t und Strafrechtspf lege, in : Kil -l i a s ,M. /Rehbinder,M. (ed . ) , Rech tsgesch ich te und Rech tssoz io log ie .Zu m Verhl tn is von Recht , Kr imi nal i t t und Gesel lschaf t in his tori

sche r Per spe kti ve, Berlin , pp. 169-194.Munsche, P.B. (1981) , Gent lemen and Poachers : the Engl ish Game Laws

1671-1831 , Cambr idge .Orth, J.C. (1987a) , Co mb in at io n Acts of the Eig htee nth Centu ry, in : Law

an d His tory Review 5, pp. 148-166.Orth, J.C. (1987b) , The Engl ish Combinat ion Laws Reconsidered, in :

F.Snyder/D.Hay (ed.) , Labour, Law and Crime. An Histor ical Perspect ive, Lo nd on /N ew York, pp. 123-149.

Paley, R. (1983), The Middlesex Justice Act of 1792: Its Origins and Effects , PhD Reading.

Palmer, S.H. (1988), Police and Protest in England and Ireland, 1780-1850, New York.

Philips, D. (1980), A New Engine of Power and Authority: The Insti-tut ional isat ion of Law-Enforcement in England 1780-1830, in :V.A. C.Ga trel l ; B. Le nm an ; G. Pa rk er (ed.) , Cr im e and the Law: Th e Social History of Crime in Western Europe Since 1500, London,

pp. 155-189. Radzinowicz, L. (1948 -1986) , A Histor y of Eng lis h Cr im in al Law an d its

Adm ini s t r a t i on Fro m 1750, 5 vol . , Lo nd on . Roberts, M.J.D. (1988) , Publ ic and Pr iv ate in Ear ly Nine tee nth Cen tu ry

London: the Vagrant Act of 1822 and its Enforcement, in: Social History13, pp.273-294.

Rosen, L. (1987) , Al ter nat i ve Co ur ts and the Con cep t of Co mm un it y. AReview Article, in: Comparative Studies in Sociology and History 25,

pp.558-565. Rule, J.G. (1979), Social Cr i m e in the Ru ra l So uth in the Eig hte ent h and

Early Nineteenth Centur ies , in : Southern History 1 , pp.135-153. Rule, J.G. (1981) , The Experience of Labour in Eighteenth Century Eng

land 1700-1800, London.

Sharpe, J. A. (1980) , Enforcing the Law in the Seventeenth Century Engl ish Village, in : Ga tr el l , V. A. C; Le nm an , B; Pa rke r, G. (ed.) , Cr im e andthe Law. The Social History of Crime in Western Europe since 1500,London , pp .97-119 .

Sharpe, J. A. (1983a), *Such Disagreement betwyx Neighbours ' : Litigationand Human Relations in Early Modern England, in: Bossy, J. (ed.) , Dis put es an d Set tlem ent s: Law an d H u m a n Rela tio ns in th e West (Past andPresen t Publ ica t ions ) , Ca mbr idg e , pp . 167-187 .

Sharpe, J. A. (1983b), Th e His tor y of C r i m e in Late Medie val and EarlyModern England: a Review on the Field, in: Social History 8, pp.187203.

32


8/6/2019 hsr1990_229

31/32

Sharpe, J. A. (1985), The People and the Law, in: Reay, B. (ed.) , Popular Cul tu re in Seven t een th Centu ry England , Lond on/S idne y, pp .244-270 .

Shoemaker, R.B. (1985) , Cr ime , Cour t s , and Communi ty : The Prosecu t ionof Misdemeanours in Middlesex Couty, 1663-1723 , PhD Stanford .

Slack, P. (1988), Poverty and Policy in Tudor and Stuart England, London.Snell, K.D.M. (1985) , Annals of the Labouring Poor: Social Change and

Agrar ian England , 1660-1900 , Cambr ige .Snyder, F. a n d Hay, D. (ed.) (1987), Labour, Law and Crime. A Historical

P e r s p e c t i v e , L o n d o n / N e w Yo r k .Spierenburg, P. (1984) , Th e Sociogenesis of Co nf in em en t and i ts Develop

ment in Ear ly Modern Europe, in : Spierenburg, P. (ed.) , The Emergenceof Carc era l Ins t i tu t ions : Pr i sons , Ga l leys and Luna t ic Asy l ums1550-1900 (C en t r um voor Maats chapp i j Gesch ie den is 12) , Rot t e rda m,

pp .9-77 .

Stone, L. a n d Stone, J. (1984), An Open Elite? England, 1540-1880, Oxford.

Styles, J. (1983a) , Em bez zle men t , I ndu str y and the Law in Eng lan d,1500-1800 , in : Berg ,M. /Hudson ,P. /Sonenscher,M. (ed . ) , Manufac ture inTown and Cou nt ry before the Factory, Cam br id ge , pp. 173-210.

Styles, J. (1983b) , Sir Joh n Fieldin g and the Pr ob le m of Cr im ina l Invest igat ion in Eig hte ent h Cen tu ry Englan d, in : Trans act ions of the RoyalHis tori cal Society 5th series 33, pp. 127-1 49.

Styles, J. (1987) , The Emergence of the Pol ice: Explaining Pol ice Reformin Eighteenth and Nineteenth Century England, in : Bri t ish Journal of Cr imo nol ogy 27 , pp . 15-22 .

Styles, J. (1988) , Crime in Eighteenth Century England, in : His tory Today38 , pp .36-42 .

Thompson, E.P. (1963), Th e Ma ki ng of the English Wo rk in g Class , Har-m o n d s w o r t h .

Thompson, E.P. (1971), Th e Mor al Eco no my of the English C ro wd in th eEighteenth Century, in : Past and Present 50, pp.76-136.

Thompson, E.P. (1975), Wh ig s an d Hu nt er s. Th e Origin of the Black Act,

H a r m o n d s w o r t h .Thompson, E.P. (1976) , Eighteenth-Century Engl ish Society: Class Strug

gle wi th ou t Cla ss? , in: Social His tor y 1, pp . 133-1 65.Trimberger, E.K. (1984), E . P.Th ompso n: U nde rs ta nd i ng the Process o f

History, in: Skocpol, T. (ed.) , Vision and Method in Historical Sociology,L o n d o n , p p . 2 1 0 - 2 4 3 .

Vogler, R.K. (1987) , Th e De ve lop me nt of S um m ar y Jur isdict ion in England and Wales in Relat ion to Civi l Disord er, Ph D Ca mb ri dg e.

Webb, S. a n d Webb, B. (1906) , Engl ish Local Government : the Par ish and

t h e C o u n t y, L o n d o n .Wells, R.A.E. (1984), Sh ee p Rustl ing in Yo rk sh ir e in the Age of th e Industr ia l and Agrar ian Revolut ions , in . Northern History 20, pp.127145.

33


8/6/2019 hsr1990_229

32/32

Wettmann. P. (1987) , A rb i t ra to r und Adjud i ca to r : Zur Bedeut ung der englischen Justices of the Peace bei der formellen und informellen Konfl iktregelung in lndl ichen Gemeinden des 18Jahrhunderts , in : ' Kriminolog ische s Jo ur na l, Beiheft 2, pp . 111-130.

Whiting. J.R.S. (1975), Prison Reform in Gloucestershire 1776-1820. AStudy in the Work of Sir George Onesiphorus Paul , London.

hsr1990_229

Documents