Albion’s Fatal Tree: Crime and Society in Eighteenth-Century England
Whigs and Hunters: The Origins of the Black Act
Twelve years ago, in 1963, Mr. E. P. Thompson exploded upon the historical scene with a book of erudition, imagination, and moral passion, The Making of the English Working Class. It is one of those books that inspire generations of scholars and students to either emulation or debunking, and it matters relatively little whether or not the major hypotheses stand the test of time. Maybe he was speaking only about a literate labor aristocracy and not about the working class generally; maybe he was grossly unfair to the Methodists; maybe the working class was not “made” as and when he said it was. The book will still remain a towering work of historical literature.
Since then Mr. Thompson has been digging back into the eighteenth century in pursuit of that study of elite and popular mentalités that the more advanced sectors of the historical profession now recognize to be as central to the process of historical change as shifts in economic, social, or political structures. The subject matter of these two new books by Mr. Thompson and his associates is the social significance of crime and the law, and they are thus part of this new drive to investigate the historical interactions of society and culture (in the anthropological sense of the term).
The keynote essay in these twin volumes is that by Douglas Hay, “Property, Authority and the Criminal Law,” which forms the introduction to Albion’s Fatal Tree. Here he sketches out a new interpretation of the social role of the law in eighteenth-century England. He tries to explain two paradoxes. Why was it that although the legislature kept adding—from about 50 to 200—to the number of offenses against property which carried the death penalty, yet the number of hangings was only about a quarter of what it had been in the seventeenth century, and if anything was tending to fall? Secondly, why did the propertied classes so obstinately refuse until the 1830s to alter this archaic system, in which practice was so wildly at variance with the statute law, despite overwhelming evidence that a milder but more regularly enforced system of punishments would protect their property more effectively and would be more in accord with natural justice and Englightenment thought?
The answer to both questions lies in the true functions of law in that society. In 1688 the ruling elite had finally rejected, as an unacceptable threat to its own power, the imposition of a Continental legal apparatus, including the abolition of the jury system and the establishment of an ubiquitous police force. This being the case, social control over the remaining 97 percent of the population had to be maintained by a mixture of terror tempered by mercy, consensus in the rough justice of the system, and an awesome display of the majesty of the law. The passage of more and more penal legislation was not intended to increase the number of hangings but merely to expand the area of the arbitrary exercise of …