Peter King. Crime, Justice, and Discretion in England 1740-1820. Oxford: Oxford University Press, 2000. xiii + 383 pp. $95.00 (cloth), ISBN 978-0-19-822910-0.
Reviewed by Robert Shoemaker (Department of History, University of Sheffield)
Published on H-Albion (November, 2001)
Cracking the Case: Crime, Justice, and Class in Eighteenth-Century England
Cracking the Case: Crime, Justice, and Class in Eighteenth-Century England
Three debates were central to the "crime wave," the explosion of interest in the history of crime, justice and punishment which commenced twenty-five years ago, and primarily but not exclusively focused on the eighteenth century. The first, stimulated by Douglas Hay's provocative article, "Property, authority and the criminal law" (1975), centered around the question of whether the administration of criminal justice served as an instrument of class rule. The second, the flip side of the first, concerned the extent to which criminality was a form of social protest. The third, arising out of social-scientific as well as Marxist perspectives, concerned the extent to which recorded patterns of indicted crime reflected the number and types of crime actually committed. Peter King has been researching and writing about these issues ever since, publishing occasional articles but saving the monograph until his careful and patient researches were completed. The result is very much worth the wait, for even if it could be argued that historiographically the debates have moved on, the difficulty of the original questions posed and the impenetrability of the sources required to answer them meant that only painstaking analysis of the sort King has done could provide compelling answers.
King's focus is on the most common serious crime, theft, or "property appropriation," as it was prosecuted in the courts in Essex (though material from other parts of the country, particularly the Home Circuit Assizes, is also included). Essex experienced many of the dramatic social changes of the period, notably urbanization on its southwest border with London and an increase in social differentiation in its increasingly prosperous agricultural areas. The period 1740 to 1820, which King calls "the golden age of discretionary justice in England," witnessed both growing concern about crime and evolutionary changes in judicial procedures, before many aspects of discretion were curtailed by criminal law and police reform. King's concern is to examine how decisions were made, at every stage of the judicial process from the moment a crime was committed to the administration of formal penal sanctions, by looking at the legal, social, and cultural constraints which shaped the behaviour of all the participants. His approach is essentially social scientific, though there is some attention to "discursive frameworks."
The central argument, that the entire judicial system was permeated by discretion, is not by itself surprising, though this point has never before been so extensively documented. Through detailed analysis of the pre-trial conduct of victims, parish officers, and magistrates, King shows how many offences went unprosecuted, and how many more prosecutions were dropped before a trial could take place, in spite of the legal prohibition on arriving at informal settlements in cases of felony. In doing so, King provides a convincing answer to the third of those questions posed during the "crime wave." Any argument that the number of thefts indicted can be correlated with levels of economic deprivation and therefore the number of crimes actually committed will have to come to terms with King's argument that if only one in every ten crimes committed was actually prosecuted (and he convincingly suggests that the proportion may well have been considerably lower), "this would have meant that indictment levels were ten times as sensitive to changes in the proportion of victims who chose to prosecute than they were to changes in the absolute level of offences being committed" (p. 12). He then goes on to provide considerable evidence of likely changes in the propensity to prosecute induced by "moral panics" caused by fears raised by dearth and the demobilization of soldiers at the conclusions of wars. Most dramatically, he shows that, induced by alarmist newspaper reporting in 1782-83 of an expected crime wave following the impending peace, victims began initiating formal prosecutions in greater numbers before the troops came home. In fact, careful statistical analysis shows that only in "a handful of years of extreme dearth or massive demobilization" (p. 166) can any correlation be shown between the number of thefts prosecuted and levels of economic hardship. Conversely, the argument that wartime prosecutions were lower because fewer crimes were committed owing to improved employment prospects is undermined by evidence of "substantial" pre-trial enlistment of suspected thieves into the armed forces and of the use of military courts for offences committed by soldiers. The prospect of using indictment levels to infer levels of actual criminality, which has long been doubtful, has become even more remote.
Given that there were so many opportunities for discretion in the operation of the judicial system, not only in the pre-trial phase but also in the conduct of trials and in sentencing and pardoning procedures, the question of whether this allowed the judicial system to be used as a method of class rule becomes increasingly important, and here King's response is more complicated. On the one hand, in a hierarchical society marked by extreme inequalities, it is hardly surprising that the poor faced considerable obstacles both in initiating prosecutions, and in achieving justice if they were accused. The costs involved in detecting offenders, initiating prosecutions and defending against them, as well as social preconceptions about the nature of criminality, worked against the unpropertied. On the other hand, the fact that judicial decisions were shaped by the idea that it was young, mobile men who constituted the greatest criminal threat meant that "those most likely to be prosecuted were not necessarily those who were experiencing the most acute poverty or distress" (p. 217). Moreover, King provides compelling evidence that the judicial system placed "a tremendous breadth of discretionary power in the hands of non-elite groups" (p. 357), including the laboring poor, who, helped by the low cost of summary justice and considerable provision for reimbursing expenses, initiated a surprising number of prosecutions. If the interests of any class were particularly furthered by the judicial system, it was those recent favorites of eighteenth-century historians, the middle class. It was farmers, artisans, and tradesmen who exercised the most discretionary power in their roles as potential prosecutors, parish officers, character witnesses, jurors, and petitioners who sought to influence pardoning decisions. Although, on the few occasions when they pulled their weight, the aristocracy usually got their way, the gentry were no more likely to succeed than their middling inferiors. But, King argues, the fact that almost everyone could use the courts for their own instrumental purposes does not mean that there was widespread belief in the legitimacy of the law, nor that the judicial system can be seen as a key force which reinforced the cultural hegemony of the elite. As a brief but insightful analysis of the impact of courtroom rituals and public punishments on their audiences suggests, the way the law was conducted did not necessarily increase popular respect for it.
With his extensive research and carefully calibrated conclusions, I would argue that King has taken this debate, and the debate over counting crime, just about as far as it can go. Where do we go from here? Arguably historians, alerted by new sources and methodologies and by more sophisticated understandings of social relations, need to return to the study of crime itself. The question of whether crime was a form of social protest was perhaps too simplistically posed, but, as King's work on gleaning suggests, judicial records provide valuable evidence about day-to-day lives and conflicts which has not yet been adequately exploited. One type of crime that is highlighted, but insufficiently analyzed, in this book (owing to the fact it requires analysis of very different types of evidence), is the whole range of illegal fraudulent practices that could be termed the property appropriations of the rich. Not only do such offences provide valuable evidence concerning trading practices, but their prosecution in the civil courts provides further evidence of uses of discretion within the legal system. Finally, building on the evidence provided here concerning the role played by ideas about criminality in shaping discretionary decision-making, we need to examine eighteenth-century writings about crime more closely, in order to resolve the apparent contradiction between widespread popular sympathy for the accused and the periodic "moral panics" which resulted in prosecutions by similar sorts of people. This impressive book thus raises as many significant questions as it answers.
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Robert Shoemaker. Review of King, Peter, Crime, Justice, and Discretion in England 1740-1820.
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