"The rulers of eighteenth-century England cherished the death sentence," proclaims Douglas Hay.1 He notes that between 1688 and 1820, the number of capital statutes grew from "about 50 to over 200", almost all of which concerned offences against property.2 Hay writes that the reason for this was a "conspiracy" of the propertied ruling class to enforce a "radical division of property", but he has run into criticism for having a narrow view of the administration of the criminal law. His critics uniformly concede that the stratification of English society meant that the system of criminal justice was as likely to show deference to the elite as any other aspect of the society, but that to extrapolate a ruling-class conspiracy from this fact is misleading. Peter King points out that only 5-10 per cent of major court prosecutions involved gentry or professionals as victims, and in doing so shifts the focus to the "middling sort".3 He goes on to point out that a quarter of property crime indictments were made by the labouring poor, with the vast majority of the rest made by the middling sort. By examining the many levels of discretion available in the pre-trial, trial and post-trial periods of any prosecution a plethora of opportunities for lesser men to influence the administration of justice are found. Ultimately the ruling class had the upper hand in the courts, but there was sufficient room for manoeuvre to allow lesser men to employ various aspects of the law to their own ends. If we recognise that 'the law' was not a homogenous entity and that those exercising discretion in courts were certainly not a homogenous group – much less an elite one – then it becomes possible to see that aristocratic power was circumscribed sufficiently to allow lesser men flexibility in their use of the law. Whether they believed in what Hay has termed the 'ideology of the law' or not is irrelevant – they used this ability to the full.

The first level of discretion came in the pre-trial phase, and was that of the victim. Larceny will go unnoticed by the authorities unless the victim reports the crime, and if he instead seeks an extra-judicial settlement with the offender the law influences negotiations as a threat available to the victim. Douglas Hay argues that this level of discretion could be used to enforce paternalism and deference towards the ruling class – victims would seek sanctions within the local community or exact their own punishment rather than exposing the offender to death or transportation. In this view, the law was used by the ruling class to cow those below them into submission, and then make them thankful that mercy was granted. This would hence enforce the social order and aid the hegemony of the ruling class. Pre-trial settlements are notoriously difficult to quantify, but in his study of Essex Peter King believes that Hay was wrong to place the focus of such activity on the gentry – he estimates that 800 Essex households used discretionary powers in this way per year.4 He has also noted that as the vast majority of felony prosecutions in Essex quarter sessions in the period 1760 – 1800, it seems reasonable to suppose that they were the greatest victims of such crimes.5 They are hence the ones with most discretionary powers in the pre-trial period, and also the ones most likely to exercise it because prosecution was time-consuming, costly and intimidating. The gentry would find it easier to bring the force of the law to bear on offenders, but the middling sort could use it to threaten them to seek an out of court settlement.

It could be suggested that the reason lesser men sought out-of-court settlements so often was because they were barred from seeking redress through the judicial system, or would not gain it effectively once engaged in the process of a trial. But King’s study of Essex shows that the decision to prosecute was frequently taken by lesser men. His study of the Essex Quarter Sessions in the period 1760 – 1800 shows that 21.5% of felony prosecutions were brought by labourers or husbandmen (who made up 39.5% of the population), which is particularly startling when their lack of property is taken into account. The most vulnerable groups appeared to be farmers and tradesman/artisans, who accounted for 34.8% and 33% of felony prosecutions respectively.6 Farmers, who accounted for 11.5% of the population, were particularly vulnerable to petty theft, and their prominence is not therefore surprising. It cannot be assumed that all artisans were necessarily rich masters – many were poor journeymen with little property. From this perspective the courts appear fairly democratic, a view which is strengthened when it is noted that the courts often paid for poorer prosecutors to go through the courts, especially towards the end of the century. With reference to the Acts of 1752 and 1778, two thirds of labourers were having their expenses paid by the end of the century.7 Literacy also does not appear to have been a barrier, with most labourers signing their names as 'X's.

Once a trial began, there were many more possible opportunities for discretion to be employed by lesser men. Although Hay assumes class homogeneity among judges and juries, in reality this was far from the case. A great landed gentleman would have different interests than someone who merely fulfilled the £10 a year property requirement to sit on a jury, and to assume this "propertied elite" is acting as a class-for-itself in the law courts is to ignore tensions that emerged between juries and judges. The juries were not simply the passive instruments of the judges' will, as was shown by tensions between the two groups in libel cases towards the end of the century.8 Langbein has pointed out that were the ruling class setting out to engineer a conspiracy to subvert criminal law entirely to their own ends, it is strange that they left the petty jury in place. The jury had the power to return a partial verdict which would effectively reduce a punishment from death to transportation. This decision was being made by the middling sort, not the elite, and an explanation must be sought for their clemency (which seemed to contradict the apparent wish of Parliament to increase the number of capital sentences). The middling sort was involved in a lot of other aspects of local administration, especially the poor law – a desire not to have the dependents of an executed villain thrown on the parish may have influenced their decision. King notes that the existence of dependents was indeed often noted as a reason for petitions after a verdict had been passed (in 41 out of 136 cases he examined), and that people aged over thirty were less likely to be hanged.9 The elite had defined the rules of the game through legislation, but room for flexibility existed in which the lesser men on the petty jury could tinker with them to employ the law to their own ends.

The other main acts of discretion open to the middling sort were as character references and as signatories of a petition after a trial had finished. Character witnesses were vastly important in a trial were evidence was scant and in petitions, and the testimony of respectable men of the middling sort carried more weight than that of labourers. This middling sort was a highly heterogeneous group which was usually drawn from the neighbours and acquaintances of the accused. Although J.P's, military officers and previous employers were occasionally called on, most witnesses came from the middling sort or respectable sector of the local community.10 Judges rarely gave precise information on the social status of character witnesses, but were usually interested in whether the accused had supported themselves by their own labour and were considered generally honest. The huge weight previous good character possessed is shown by the number of petitions that made reference to it – 131 of the 136 that King examined.11 This was a huge boon to lesser men who wished to employ the law to their own ends – if many character witnesses were willing to testify to a man’s honesty and industry, the chance of his re-socialisation was higher because he had the necessary community ties to achieve it. King notes that in 50% of the cases were good character was pleaded, petitions were accepted – and he also notes that the involvement of aristocrats did not boost the success rate.

Hay’s thesis is not incompatible with any of the above because it can be shaped to suit the evidence. The triumph of a labouring man in the courts or the execution of a noble such as Lord Ferrers is seen as a concession made to maintain the façade of the rule of law, a ploy that is in fact just part of the conspiracy of the ruling class in pursuit of their hegemony. But it remains to be explained why so many of the middling sort and labouring poor still believed the law would deal with their grievances, most of which after all involved people of a similar social standing to themselves. Although the ruling elite were certainly more propertied than the labouring poor, E.P. Thompson has pointed out that the reason the law remained legitimate was that it still protected what little property the poor had.12 As Langbein’s study of 171 Old Bailey cases shows, most prosecutions occurred across a "class line", not a "class gulf". They were mostly initiated by small shopkeepers, artisans and lodging-house keepers – only one case involved a gentleman.13 The fact that huge numbers of victims of crime came from the non-elite and used the law to redress their grievances does not invalidate the notion that the propertied elite could often manipulate the law to their own ends – but it removes them from the central stage. They were certainly not the only actors in the judicial system, and many poorer people thought this system valid.

This is not to discount the hostility that did exist towards some aspects of the law. E.P. Thompson's study of the Black Acts shows one area of criminal law which the poorer sort would only encounter as offender, namely the game laws. To hunt game you had to have an income from land of £100 a year or more, and there was hence a sharp dichotomy between those who could hunt game and those who could not. Thompson argues that the game laws were an open attempt at class warfare by the government, serving their own interests, and with such a clear-cut split there seems little reason to disbelieve him. Hay has pointed out that the hunt was a social event charged with meaning for the aristocracy, and they did not like to see it debased by lesser men.14 Such displacement of authority could not be tolerated, for

"It was a sorry state of affairs when the King could not defend his own forests and parks, and when the acting Commander-in-Chief of the armed forces could not prevent his own park from being driven for deer."15

But the game laws are a special case, and Hay has been criticised by King for focusing on them. In no other arena had the poor declared such open war on the property of the aristocracy, and in no other arena did they confront their punishment so obviously from a system alien to them. We cannot assume that homogenous attitudes towards the law existed, for a man who hunted his Lord’s deer by night might prosecute his neighbour for petty larceny the next day. In this respect attitudes to the law among the middling sort and labouring poor were pragmatic. When such an attitude was employed by the middling sort, it gave the unpropertied particular room for manoeuvre – when juries composed of the middling sort found themselves broadly in sympathy with the poor, such as over the Militia Acts or in commoners' rights disputes, they could frustrate the magistracy. Whilst we should not let this day-to-day wrangling hide the fact that property would collaborate when seriously threatened, such as by bread rioters or unions of the poor, pragmatism certainly was exercised by the middling sort. Once again this underlies the heterogeneity of those exercising discretion in the criminal process.

Those at the apex of the social hierarchy decided what laws to enact in Parliament, often following their own interests. When they appeared in court, deference was shown to them and they were taken more seriously than lesser men - but this did not save Lord Ferrers from the gallows. Such was the discretion available to lesser men in the judicial system, and such was their ability to use the law to prosecute people who committed crimes against them, that it is fair to say the law was principally employed by lesser men. This is perfectly compatible with the fact the gentry set the rules of the game, for they had to provide adequate flexibility to lesser men for the system to work at all. Labourers and artisans could make sure their small amount of property was protected from their neighbours, even if they felt oppressed by the game laws. The criminal law was a flexible tool malleable to the interests of all classes, and it was only when classes came radically into conflict through it that those at the top of the social hierarchy won out. Whether we ascribe concession to humanitarian concerns or Hay's conspiracy, the fact is that it existed and was exercised. The decision-makers in the criminal law system were not a homogenous ruling class able to oppress everyone else, but a diverse mix of people who tried to make the system work towards their own ends. As in other areas of administration such as the poor law and labour market, the middling sort were increasingly able to realise their goals, often in alliance with the poor.

1. D. Hay, 'Property, authority and the criminal law' in D. Hay et al. (ed.), Albion's Fatal Tree, p. 17

2. Ibid., p. 18

3. P. King, Crime, Justice and Discretion in England, 1740 – 1820, ch. 11, passim.

4. Ibid., p. 359

5. P. King, 'Decision-making and decision-makers in criminal law 1750 – 1800', Historical Journal, 1984.

6. Ibid.

7. Ibid.

8. J. Langbein, 'Albion’s fatal flaw', Past and Present, 1983

9. P. King, op. cit.

10. P. King, Crime, Justice and Discretion in England, 1740 – 1820, p. 309

11. P. King, 'Decision-making and decision-makers in criminal law 1750 – 1800', Historical Journal, 1984.

12. E.P. Thompson, Whigs and Hunters, ch. 10

13. Langbein, op. cit.

14. D. Hay, 'Poaching and the game laws on Cannock Chase', in Hay et al. (eds.), Albion's Fatal Tree

15. Ibid., p. 191

Complete bibliography

P. King, Crime, Justice and Discretion in England, 1740 – 1820

P. King, 'Decision-making and decision-makers in criminal law 1750 – 1800', Historical Journal, 1984.

E.P. Thompson, Whigs and Hunters

J. Langbein, 'Albion’s fatal flaw', Past and Present, 1983

D. Hay, 'Property, authority and the criminal law' in D. Hay et al. (ed.), Albion's Fatal Tree

D. Hay, 'Poaching and the game laws on Cannock Chase', in Hay et al. (eds.), Albion's Fatal Tree

J. Brewer and J. Styles, 'Introduction', in Brewer and Styles (eds.), An Ungovernable People: the English and their Law in the seventeenth and eighteenth centuries