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 mercy. Only about half of those condemned to death were actually hanged, the remainder being either pardoned or transported to the colonies on the petition of the local elite and the judges.
This placed enormous powers of patronage in the hands of the elite to prosecute or not to prosecute and to withhold or to grant support for a plea of mercy, as personal feelings and local conditions might suggest. This flexible power reinforced the whole social system of deference and dependence, and also made it possible to adjust the law to the winds of public opinion. Another factor was the behavior of the judges themselves, who leaned over backward in favor of the accused if the slightest technical fault in the wording of the indictment could be discovered. In doing so they were protecting the arcana of their profession. In view of these enormous benefits to influential groups, it is not surprising that the rationalist reformers made no headway.
The third factor, which Mr. Douglas unaccountably ignores, was the habit of juries to refuse to convict, in plain defiance of the facts, especially by setting the value of stolen property below the minimum that carried the death penalty. The fourth, which he also ignores, was the accidental by-product of empire—the opening up of a conveniently remote dumping ground, Georgia, to which felons could be transported, never to be seen or heard of again, which alone made such flexibility in the exercise of mercy possible. Despite these omissions, Mr. Douglas has made a brilliant interpretation of a hitherto baffling phenomenon.
The other essays in the book, and Mr. Thompson’s own book which is an essay which grew too large for inclusion, are all illustrations of this central theme of the relationship of the social hierarchy to the law and to crime. They examine the nature of crime and the criminals, and the way the law was framed and used to suit the needs of the ruling class without alienating the sense of natural justice of the population at large. This last result was achieved by shrewd tokenism, namely the occasional enforcement of the full rigor of the law against a member of the ruling class, the classic and much quoted example being the hanging—and subsequent dissection of the body—of Lord Ferrers for murder in 1760. Both the use of juries and these occasional sacrifices of a member of the elite made it credible to believe that the law was an impartial instrument of natural justice. It was also, of course, a powerful defense against any despotic tendencies on the part of the king and his ministers in London.
Another study concerns the grisly details of the struggle at Tyburn between the surgeons, anxious to obtain the bodies for anatomical dissection before their students, and the mob, which resented such activities. The other essays all deal with various types of crime: smuggling, which became an activity almost on the scale of the bootleg liquor industry during Prohibition; wrecking and looting of ships; game poaching; and the writing of anonymous threatening or blackmail letters, this last a particularly fascinating study by Mr. Thompson himself. Here are some of the darker realities of low life in the Augustan Age.
Several of these essays are examples of that most dismal kind of historical writing, the emptying out on the page of the contents of boxes of note cards. But the overall impression from both books is stunning—and yet is somehow missed by all the contributors, including Mr. Thompson, since they insist on looking at the situation exclusively from below. Mr. Thompson, for example, takes pains to make clear that external deference to superiors was often a veneer covering deep-seated resentments and hatreds. But even he fails to draw the obvious conclusion about the extreme precariousness of the balance between the forces of law and order and those of crime and anarchy in eighteenth-century England. In the coastal areas of Sussex, the smuggling gangs terrorized the countryside, and outnumbered and outgunned the troops sent to crush them. In Hampshire, gangs of deer stealers rode about at will, and generally meted out their own rough justice. In Cornwall, shipwreckers were uncontrollable and were left free to plunder as they pleased. In London, mobs of seamen roamed the streets, destroying bawdy houses they thought had cheated them. Large-scale pitched battles took place at Tyburn for possession of the bodies of the hanged. In years of bad harvests, food rioters took over the markets and ransacked private granaries.
Besides these group activities, there was the criminal underworld. There were the swarms of pickpockets and petty thieves; the muggers who prowled the streets of London with even greater impunity than those in New York today; the footpads and highwaymen who regularly waylaid and robbed travelers on the highroads. These working men were not of a kindly disposition. Sussex smugglers caught and tortured slowly to death an excise-man and an informer; a mob of London weavers stoned to death an informer; Cornish wreckers stripped and murdered a helpless woman cast away on a beach; anonymous blackmailers were constantly using the threat and reality of arson to extort money or concessions; muggers maimed and murdered; highwaymen and footpads shot to kill if resistance was offered to their demands. Nor was the society within which these criminals moved, like Mao’s fish in the water, particularly gentle. On several occasions, for example, crowds stoned and beat to death persons put in the pillory for particularly unpopular offenses like sodomy or the keeping of brothels. As for the crowds at a hanging, they were merry and drunken, and enjoyed the spectacle.
This was a society forever teetering on the edge of anarchy; and in view of this, it is not surprising that the legislature resorted increasingly to the threat of “Albion’s Fatal Tree”—the gallows. The real surprise is that they did not in practice use it more often. As it was, they most skillfully managed to keep this unending conflict between the haves and the have-nots from developing into an open and bloody class war. The English propertied classes of the eighteenth century were prepared to put up with a level of casual violence from their inferiors which would lead to martial law and the suspension of civil rights were it to occur today. The idea that there is something historically unusual about the level of late-twentieth-century violence in America is sheer nonsense, as these books amply prove.
In Whigs and Hunters, Mr. Thompson circles around and slowly narrows in on a single Act of Parliament, the Black Act of 1723, which at one blow created fifty new capital offenses, all concerned with threats to property. To explain the Act he found himself obliged to study deer hunters, forest government, courtiers and their parks, and finally the Whig government in London. In the process, he throws the gauntlet down to generations of Whig historians and particularly to Professor J. H. Plumb’s two-volume work on Robert Walpole’s establishment of Whig power under George I and George II. He flatly declares, “I am at a loss to know who…benefited from Walpole’s administration…beyond the circle of Walpole’s own creatures.” Here is historical revisionism with a vengeance, challenging one of the most established dogmas of the past decades, that Walpole was the architect of English political stability, prosperity, the rule of law, and political liberty for the men of property, which was the envy of the civilized world at the time. It was a state and a society that was particularly admired by French philosophers and reformers, although some of them also noted that an extraordinarily large number of Englishmen seemed to end up on the gallows or transported to America for life.
The ultimate moral issue raised by these books is whether such practices were a price worth paying for the benefits received. In a key passage, Mr. Thompson identifies his subject as a conflict between on the one hand “the petty predators”—deer poachers, turf cutters, wood stealers, horse thieves, venison traders, armed petty blackmailers—and, on the other, “the great predators.” These he defines as the great Whig oligarchs, such as the Duke of Newcastle and Sir Robert Walpole, men scrambling for office, money, perquisites, and patronage, and enclosing Crown and public lands in the process. “Their depredations were immeasurably larger and more injurious…than the depredations of the deer-stealers.”
Mr. Thompson goes even further to argue that
political life in England in the 1720s had something of the sick quality of a “banana republic.” This is a recognized phase of commercial capitalism when predators fight for the spoils of power, and have not yet agreed to submit to rational or bureaucratic rules and forms.
Perhaps this last hypothesis should be cleared out of the way first, so that the more serious historical issues can be put in the right perspective. Twenty years of intensive investigation of English social history of the early modern period suggest that England in the 1720s was no more corrupt, no more swarming with “great predators” than it had been at any time in the previous 180 years or was to be for the next fifty. Walpole was, in fact, the last English chief minister to make a great fortune out of his office—and we now know that the Duke of Newcastle made nothing.
Only a historian looking back from the more respectable and bureaucratized period of the Napoleonic wars would see anything especially corrupt about the England of the 1720s; one looking forward from the 1540s or the 1620s would see a positive improvement. Nor is it fair to describe the Whigs in the 1720s as “a curious junta of political speculators and speculative politicians, stockjobbers, officers grown fat on Marlborough’s wars, time-serving dependents in the law and the church, and great landed magnates.” No political party leadership is a very pretty sight when examined at close quarters, but the Whigs had the support of the political nation—and rightly so—as the barrier against religious persecution, arbitrary monarchical government, police repression, dependence on France, and military adventures leading to high taxation and reduced trade.
One of the main causes of those social disturbances in the forest area which reached crisis dimensions in 1723 was the effort to improve administrative efficiency both in royal and episcopal properties, and to recover rights that had been relinquished to the local population over a long period of slack and incompetent administration. Trouble arose because illegal abuses tolerated for a generation or so take on the hallowed sanctity of a legal right, and threats to stop them inevitably provoke organized physical resistance. This is exactly what happened in the 1630s and again in 1718-1723. The local population, egged on by downwardly mobile gentry and yeomen, took to armed group poaching, blackmail, and malicious damage of trees, cattle, and fishponds to punish their opponents. The latter were the new forest bureaucrats backed by Walpole, who were anxious to regain lost legal rights for the forest so as to increase their own perquisites, and wealthy Whig oligarchs busy carving out parks and building palaces with their new-found riches. Both processes threatened the livelihood of the local communities who had used the forest areas for grazing, fuel, and a source of protein.
With meticulous skill and painstaking attention to detail, Mr. Thompson has managed to dig out from a mass of obscure archives the tragic story of this new crisis in the centuries-old conflict of interest between deer and people, between Crown and commons, in the old forest areas. He shows us, in so far as it is possible from the fragmentary evidence, why the tensions rose, who were the conflicting parties, and what were the tactics used on both sides, both by Walpole and by the “Blacks”—local men who blackened their faces before sallying forth to kill deer, intimidate a gamekeeper, or destroy an enemy’s property. But apart from the Black Act of 1723 itself, I cannot see that the actions of the government in response to a clear breakdown of law and order and public authority over large areas were anything but what can reasonably be expected of any government at any time. Indeed, in his handling of internal dissidence Walpole certainly behaved better than the American government in the 1960s, in that he made hardly any use of agents provocateurs, while in both cases gross abuses of power in bringing men to trial were checked by the rugged independence of juries.
But there remains the Black Act of 1723, passed by Parliament with a minimum of fuss, after only two deaths, a few woundings, and a lot of property damage had occurred as a result of “Black” activity. The Act extended the death penalty to deer stealing, breaking of fishponds, cutting of young trees, maiming of cattle, extortion and blackmail, going about armed and in disguise, and even to knowingly harboring persons guilty of these acts. A fully satisfactory explanation of the passage of the Act is given by Mr. Thompson—although it does not satisfy him. In the first place, there is the political philosophy of the Lockean state, whose prime duty it was to protect property. Secondly, this was a society which held personal life—especially that of “loose and disorderly persons”—at far less value than we do today. Death was no stranger, and could visit anyone at any moment; the gallows was merely one of many possibilities that constantly threatened, and in any case, it was well known that a half of all those sentenced to death were in fact transported or pardoned. Thirdly and lastly, this was a period in which the doctrine of retribution rather than rehabilitation was still uppermost in penal theory.
Apart from this philosophical background, there were also both structural and immediate reasons for the easy passage of the Act in the political climate of 1723. To take structure first, there was no police force, there were no state prosecutors, no powers to torture suspects, and no powers for trial by magistrates rather than before a jury. Finally, there was the situation in 1723. The government was weak and divided, still staggering from the shock of revelations of corruption and duplicity arising from the South Sea Bubble. The country was in a very agitated condition, with widespread rumors, and some evidence, of new Jacobite conspiracies, the latest of which had been uncovered in 1722. No one could be sure that the deer-killing and blackmailing gang of today might not turn out to be the core of a fresh Jacobite conspiracy tomorrow.
Furthermore, this was a time of great anxiety about an alarming crime wave, when the roads of England and the streets of London were infested with muggers, footpads, and highwaymen. It was the age of Jonathan Wild, and travelers went in fear of their lives and property. Compared with these causes, the fact that so many of the victims of the Blacks were Whig supporters, of which Mr. Thompson makes much, pales to insignificance. Even if true, the reality was that there was a serious breakdown of law and order in wide areas of forest country, with armed bands of men running about at will, destroying property and blackmailing by threats of further destruction. Taken together, the philosophical premises, the structural situation, and the immediate threat to law and order adequately explain the uncontested passage of an Act which so enormously extended the number of capital crimes against property. The ruling classes were afraid, and fearful men take desperate, and often foolish and immoral, measures to protect themselves.
Mr. Thompson has brilliantly elucidated the factual background to this Act. Where I disagree is over his claims about the especially malevolent, self-interested, and corrupt character of English government in the 1720s. Moreover, despite this picture of malevolence, Mr. Thompson is forced to admit that in practice the Act was rarely used, and therefore had little practical effect other than as a weapon to be held in reserve in case of outbreaks of serious violence against property.
Until the last twelve pages of Whigs and Hunters, the reader is led to assume that Mr. Thompson takes the vulgar Marxist line that law is only a superstructure, a mere façade to disguise the brazen self-interest of the ruling class in protecting its power and wealth. In his conclusion, however, he swings firmly in the other direction. He rounds on his Marxist colleagues and berates them for failing to recognize that “there is a very large difference…between arbitrary extra-legal power and the rule of law.”
On the one hand, the law is unquestionably an instrument and a legitimation of class power. On the other hand, “the rhetoric and rules of a society are something a great deal more than a sham…. The law mediated these class relations through legal forms which imposed, again and again, inhibitions upon the actions of the rulers.” There were critical occasions when the courts defeated the government. Mr. Thompson finally concludes that it was this ingrained respect for the law which obliged the English ruling class to make the necessary concessions rather than to persist in reactionary policies enforced by the arbitrary exercise of naked force, when social conflict came to a head in the early nineteenth century. And so the old Marxist turns out to be a new Whig after all.