An Ungovernable People: The English and Their Law in the Seventeenth and Eighteenth Centuries
About a quarter of a century ago many historians decided that it was high time to study rather more of the population than the top 2 or 3 percent, from whom were drawn the political and social elite: the kings, generals, nobles, judges, bishops, politicians, and local magnates whose (mostly bloody) deeds had hitherto filled the history books. The trouble was, however, that very few of the bottom 97 percent have left any trace of themselves in the records, except the bare facts of their births, marriages, and deaths. As a result, much of the early work on the poor was aridly statistical in nature. But it fairly soon became apparent that reducing the vast majority of the population to a set of numbers in a table was hardly more enlightening than ignoring them altogether. We still did not know anything about what they thought or felt.
One way out of this dilemma was to turn to the records of the law, for here alone can the authentic voices of the poor be heard, if only as voluble witnesses, angry plaintiffs, and fearful defendants. Treated with care, these documents can act as “a point of entry into the mental world of the poor.” The results have begun to emerge in the form of case histories, of which the most famous is Emmanuel Le Roy Ladurie’s Montaillou. Historians strike the richest paydirt in societies that practiced Roman law, with its written interrogations and depositions, had a well-developed police system, and used torture to extract information. The records of the Inquisition are ideal, since this institution possessed all these characteristics and was also obsessively interested in what people—even humble people—thought. In Anglo-Saxon countries hardly any of these benefits (for historians) apply, but it is still possible to glean a rich harvest from a patient study of legal documents.
Apart from illuminating the mentalité and behavior of the poor, legal records can also throw light on the relationship of authority and society. In particular they can show how the law was perceived by different social layers and how, and in whose interest, it was applied in practice. This opens up new vistas on the nature and function of power, and on the perceptions of different groups of what constitutes natural justice.
There are two possible ways to go about tackling legal records. One is to break crime down into a series of categories and to quantify indictments over time, in order to produce the sort of statistics in which the late J. Edgar Hoover used to delight.1 Even today, however, this is a very dubious excuse. We know that the number of indictments bears little relation to the number of real acts, and we strongly suspect that the relationship has varied widely over time. Secondly the numbers used are commonly quite small, since they are so tedious to extract, which leads to false deductions being made from insignificant and perhaps random fluctuations. Thirdly, our aggregate population estimates are very shaky, which makes it very hard to compare rates of crime per 1000 from decade to decade or century to century, although we can be certain that the murder rate in medieval Oxford was very much greater than in the most dangerous areas of the most dangerous cities in America today. A far more rewarding way to use this material is to extract from it a series of case histories, which illuminate the way the authorities administered justice and the attitudes of the public toward crime and the law. This approach forms an essential bridge between social history and political history, which for a long while now have been proceeding on more or less separate tracks, to the serious detriment of both.
The conceptual framework in which these problems are currently seen during the early modern period in general, and in eighteenth-century England in particular, has been laid down in some brilliant pioneer work by Edward Thompson. To him eighteenth-century English society was divided between “Patricians” (the top 5 percent of landowners and wielders of power) and “Plebeians” (the rest), who were locked both in an unending conflict—“class war without class”—and in a culture of paternalist reciprocity.2 According to this model the law was an instrument created and used to keep the Plebeians in their place and to advance their own interests by “Patrician-Banditti” and “Courtier-Brigands.” The law was “a selective instrument of class justice.” The second part of the thesis states that crime can be divided into two types, nefarious crime for personal gain, and “social crime” which conformed to community standards, received widespread protection and support in the locality, and was often used to pressure the authorities to adopt popular concepts of natural justice. According to Thompson and his followers, a whole range of violent popular activities, from grain riots to poaching to smuggling, were expressions of “the moral economy of the crowd” or of “social banditry” of the Robin Hood type.3
Although they hardly ever come right out and say so, the six authors of this absorbing collection of essays provide the material for the first major critique of Thompson’s model. The iconoclastic significance of the book only appears by indirection as one reads chapter after chapter. In the first place the Patrician/Plebeian dichotomy is shown to involve a serious distortion of the eighteenth-century English social structure. It completely ignores the central change of the period, mainly the remarkable, and probably unique, rise in numbers, wealth, leisure, and education of “the middling sort,” minor gentlemen, large tenant farmers, small professional men, businessmen, monied men, small merchants, shopkeepers, clerks, apothecaries, scriveners, surveyors, auditors, artists, engravers, and so on. These are the law-abiding people of property whose demands for equal justice for all, due legal process, and participation in the political system led to the enormously popular Wilkite movement in the late eighteenth century, and ultimately to the first Reform Bill of 1832.
Secondly, as Brewer points out in his introduction, it is misleading to treat the law in seventeenth- and eighteenth-century England merely as an instrument of class oppression, a view which seems plausible only if we narrow the focus to the criminal law. England was a profoundly legalistic society, and the Patricians were as bound by the rules of the common law as were the middling sort or the Plebeians. The law was a universally revered ideology which in its civil aspect both legitimated and at the same time limited the authority of the Patricians. The common law created a multiple-use right, as easily exploited by the accused as by the accuser. Moreover, institutions like the jury and the pillory added an element of popular participation to the whole judicial and penal process.
Finally the distinction between nefarious and “social” crime turns out on close inspection to be sometimes hard to draw. Footpads who used their truncheons to break their victims’ heads for personal gain clearly fall into the former category, while the often female rioters who seized and sold grain at a “just price” equally clearly fall into the latter. But what about the highwaymen, who were often popular heroes because of their gentlemanly bravado and their skill in preying upon the rich? Are they the “social bandits” described by Eric Hobsbawm? And what about the Cornish wreckers, who also enjoyed wide community support and moral vindication? Are they therefore to be classified as “social” criminals, although they were men who lured ships in a storm on to the rocks, and stripped naked and/or murdered the survivors as they struggled ashore?
All these questions about the Thompson model are obliquely or directly raised by this thought-provoking book. What remains untouched is first the not very surprising fact that the criminal law—but not the civil law—was indeed in the last resort an instrument of the elite to protect their lives and property by the use of selective terror. Second, there was undoubtedly a “moral economy of the crowd” which animated grain rioters, prisoners for debt, and certain other local groups who felt that the law did not coincide with natural justice.
What this book makes abundantly clear is that a level of disorder existed in eighteenth-century England which if it occurred today would certainly result in a declaration of martial law, and the calling out of the National Guard. Riot was as much a part of the tactics of the Plebeians in the negotiating process as the taking of hostages has become today. Both are used to equalize power in a conflict, and in doing so to publicize a perceived injustice. The second conclusion one can draw from this book is that both the law itself and its administrative procedures severely limited the power of the Patricians. Most of them certainly wished to establish a deferentially harmonious society, but they were unwilling to pay the price of violence to obtain one, and unable to get their own way via the law. In the locality, the agent of enforcement was the amateur constable, supervised vaguely by the amateur justice of the peace. Both tended to concentrate on avoiding conflict and letting sleeping dogs lie. “Patrician” JPs were passive resisters to unpopular state laws passed by “Patrician” MPs about such matters as alehouse licensing, gambling, profanity, breaking the sabbath, sexual misdemeanors, and absence from church. Only those outside the “moral community” of the village tended to get prosecuted.
Some geographical areas remained wholly outside the law in the early eighteenth century, for example Kingswood forest, just outside Bristol, examined by Dr. Malcolmson. The coal miners there lived a savage, untamed life, untouched by gentry or the church, brawling, fornicating, drinking, and occasionally marching into Bristol, to the terror of the citizens. It took the heady brew of Methodism finally to tame them and to allow the penetration of law and order. Perhaps the most remarkable essay in the book is that by John Brewer, who shows the radical John Wilkes acting as a strict constructionist, using the letter of the common law to baffle Chief Justice Mansfield, with his equitable view of his function. No one can read this essay and still believe that the law was merely a tool for social oppression by the Patricians.
This conclusion is supported by Dr. Styles’s essay on the Yorkshire coiners, in which he shows conclusively that the elite was divided in its interests and opinions and that the coiners made skillful use of the niceties of the law. Even when the coiners—respectable tradesmen all—clubbed together to hire some ruffians to murder an over-zealous exciseman, the forces of order were unable to persuade a local jury to convict the murderers, who had to be discharged. The leading coiner, “King David,” was indeed convicted and executed and the murderers finally convicted (five years later)—of robbing their victim’s body—but huge crowds collected to prevent the authorities from hanging the corpses of the executed murderers in chains. This is a case where the distinction between normal crime and “social” crime is hopelessly blurred, since the coiners were making money by forgery and undermining the national economy by doing so. And yet they were providing the local community with a necessary means of exchange which should have been supplied by the government itself, and so received widespread local support.
This book thus marks a new stage in the historiography of the workings of the eighteenth-century legal system, of the interaction of eighteenth-century society and government, and of the complex relationships between ideas about property, authority, and deference on the one hand and equality before the law, freedom, and natural justice on the other. England in the eighteenth century emerges as an unruly, disorderly, almost anarchic, society, tenuously held together by a shared respect for the common law, by a partly shared consensus about the legitimate but limited rights of paternalism, and by the intermittent use of threat or terror. Neither eighteenth-century English government, nor the conventional wisdom about eighteenth-century English society and its attitudes toward authority, law, and crime, will ever look quite the same again.
J.S. Cockburn, "The Nature and Incidence of Crime in England 1559-1625," in J.S. Cockburn (ed.), Crime in England 1550-1800 (Princeton University Press, 1977). J. Beattie, "The Patterns of Crime in England 1660-1800," Past and Present, 62, 1974.↩
E.P. Thompson, Whigs and Hunters, (Pantheon, 1976). E.P. Thompson, "Eighteenth Century Crime, Popular Movements and Social Control," Bulletin of the Society for the Study of Labour History, 25, 1972, E.P. Thompson, "Patrician Society, Plebeian Culture," Journal of Social History, 7, 1973-1974. D. Hay, "Property, Authority and the Criminal Law," in D. Hay et al. (eds.), Albion's Fatal Tree: Crime and Society in Eighteenth-Century England (Pantheon, 1976).↩
E.J. Hobsbawm, "Social Criminality," Bulletin of the Society for the Study of Labour History, 25, 1972. E.P. Thompson, loc. cit. E.P. Thompson, "Eighteenth Century Society: Class Struggle without Class," Social History, 3, 1978.↩
The Two Thompsons November 20, 1980
J.S. Cockburn, “The Nature and Incidence of Crime in England 1559-1625,” in J.S. Cockburn (ed.), Crime in England 1550-1800 (Princeton University Press, 1977). J. Beattie, “The Patterns of Crime in England 1660-1800,” Past and Present, 62, 1974.↩
E.P. Thompson, Whigs and Hunters, (Pantheon, 1976). E.P. Thompson, “Eighteenth Century Crime, Popular Movements and Social Control,” Bulletin of the Society for the Study of Labour History, 25, 1972, E.P. Thompson, “Patrician Society, Plebeian Culture,” Journal of Social History, 7, 1973-1974. D. Hay, “Property, Authority and the Criminal Law,” in D. Hay et al. (eds.), Albion’s Fatal Tree: Crime and Society in Eighteenth-Century England (Pantheon, 1976).↩
E.J. Hobsbawm, “Social Criminality,” Bulletin of the Society for the Study of Labour History, 25, 1972. E.P. Thompson, loc. cit. E.P. Thompson, “Eighteenth Century Society: Class Struggle without Class,” Social History, 3, 1978.↩