The articles of Douglas Hay in “Property, authority and the criminal law “and Peter King’s “Conclusion: Law and social relations, 1740-1820” both argued that the criminal justice system played an important role in maintaining social order in preindustrial England in the 18th century. Both authors explained that property ownership had largely helped shaped the criminal justice system with its primary and end purpose “to protect the property of the propertied from the predations of the poor”.
Hay persuasively states that the long list of capital statutes of 18th century England which were not strictly enforced at all times, together with its complex rituals of sentencing, and more equally complex and elaborate system of patronage used to secure pardons, and finally the terror of the gallows and the rhetoric of the death sentence , all served in creating the popular opinion(treated with deference and managed by delicacy and circumspection among the propertied class) that the law is powerful and legitimate.
The criminal law, specifically with its threat of the gallows, created the ideologies of majesty, justice and mercy of the law which shaped the consciousness of the Englishmen. The Englishmen were open for new ideologies since they entered 18th century with the crumbling of their most rooted ideology of Divine Right of Kings under the terror of the Tudors and the Stuarts. These ideologies therefore were instrumental in maintaining social order of that era as they go into transition from recognizing absolute authority from kings to Law and more than any other secured the interest of the ruling class and strengthened their authority.
Hay discussed how rights to property had become the preoccupations of eighteenth century England after the Glorious Revolution of 1688, taking prominence over interest of the state and the Divine Will as Locke , reflecting the spirit of the age, states that “government has no other end but the preservation of property”. Following the terror of the police force as controlled by the Stuarts for their own ends, a regular police force was abolished and the gentry do not even like to entertain the idea of creating one.
To protect their properties therefore, the propertied Englishmen had created and enacted laws that threatened thieves with death. Hay revealed that according to research the number of capital statutes increased from “50 to over 200 between the year 1688 and 1820”, and he was careful to point out that these laws were related to offenses against property. Hay prefers the explanation that the rapid increase of capital statutes was not due to human depravity or degeneracy but due to the increase of trade and commerce of that era and that these laws were enacted for the protection of the property interest of the propertied.
Hay further claimed that in spite of the fact that the law was not enforced at all times, random in application and allowed many convicts and thefts to escape death sentence, reforms did not occur ,especially against the bloodiest code ( death sentence) due to the fact that criminal law with its accompanied ideologies of majesty, justice and mercy , and corresponding complex negotiations of bartering power for pardon (currency of patronage) as practiced by then was already enmeshed in the mental and social structure of eighteenth century England.
The terror of the gallows was the raw material in maintaining and exacting obedience from the strong majority to the weak few , in encouraging loyalty and deference and in legitimizing the current status qou of property protection. Interestingly, Hay points out that in 18th century England the strength of the law was in its elasticity and its effectiveness “was dependent in large part on its very weakness and inconsistencies”.
King, on the other hand, challenges the view that the law was primarily the instrument of few propertied elite but instead he presents it as drama stage wherein the different strata of society, the elite few, middling sorts and the labouring poor are engaged in constant struggle, negotiation and compromise. King also presents the idea that although the criminal justice system can be use for the exploitation of power and authority it was also a useful method to limit power and authority.
The propertied at times had to bend on popular opinion of the unpropertied mass. He claimed that due to the fact that there was leniency and lack of strict observance of the written law ,the labouring poor, like the middling class (farmers ,innkeepers ,etc ) also enjoys exercising the power of discretion and pardoning and there are many instances when the magistrates favored their causes pressuring the propertied class to act on their favor .
This is a very interesting thing to note as according to King, that since at the onset it seems that decisions almost rely or rest entirely on men of property it would be quite a natural thing to miss the potential significance and importance of the discretionary choices that the laboring sort were privileged to exercise as prosecutors and victims.
King explained that the decisions that” pull the lever of fear and mercy” do not rest solely on the propertied men alone but also of the heterogeneous middling group and the mass labouring poor. King further explained the occasions of pretrial processes, provided the prosecutors and participants (that includes the labouring poor) a wider opportunity to exercise unlimited discretion of whether to extend mercy through pardon.
King states that instead of encouraging deference, the Law undermines it. Although the poor are aware that there are instances when they can use the law to serve their purposes and protect their properties in the same way as that it does to the few elite (although in much lesser degree) it does not automatically guarantee that the laboring poor have feelings of deference and respect to the law as well as to those who administer or enforces it.
The process of pardoning, according to Peter King, seems not to reinforce deference on the gentry because according to him, occasions arose when a king ignores even the aristocratic request for pardons and in most cases the approval of trial judge is needed and unless with aristocratic backings, the judge is seldom moved by the social status of the petitioners. Also, King doubted the idea that the law encourages the hegemony of the propertied elite in a much wider sense.
He raised the question that how the justice system was managed, with all of its random application and subjection to favoritism, in a daily basis to the lives of the unpropertied who are under them, may made it difficult to establish hegemony of the propertied few. Moreover, King cast doubt on the “usefulness of pardon petitioning as a ‘currency of patronage’ “. According to him, in the second half of 18th century more convicted criminals were pardoned and it was evident that the rulers or propertied seems to chose now objects of terror (who to hang) and not objects of mercy (who to pardon).
As quoted from Hughes “For mercy to evoke gratitude the ruler must be seen to choose mercy so that each reprieve is a special case, to be paid for in gratitude and obedience”. The two authors, Douglas Hay and Peter King focused on the influence and effect of the criminal law especially with respect to the terror of the gallows in eighteenth century England, providing or quoting written sources to support their views and arguments.
Hay centered his argument on the fact that it was the propertied elite who pulled the strings in the criminal justice drama of eighteenth century England. However King argued that the criminal law was a struggle of negotiation and accommodation by almost every group in 18th century England. Personally, I believe that Douglas Hay’s work is more reliable and convincing.
My primary reason is that, Hay in analyzing and arriving in his conclusions, put into consideration the underlying forces of sociological motives and influences that pervades the mind of the eighteenth century Englishmen belonging to different strata of society. He based not his judgments on the present rational of our present age but what those concepts, like justice, meant to that age as they moved from the era of recognizing the king as absolute authority to recognizing the law as a source of authority.
Because of this method of analysis, he was able to convincingly interpret, based on examples and writings of that age, the actions of eighteenth century England with regards to their behavior regarding and use of the law and how it works from the lowest level to the top. We all know that the development of man is progressive and that a certain era may view and understand specific concepts differently, as their ideas are influenced by the age in which they lived in.
In presenting arguments, it is of utmost importance to present evidence that would strongly support the argument. Both presented written evidence and draw it from a wide variety of sources and both expressed some conclusions as being implied from their sources like when Hay said that “We cannot of course infer gratitude from begging letters but there is enough evidence to show that much of it were genuine” and when King says that “although they were in agreement about how to use the discretionary powers it gave them, there can be little doubt that…” , .
Hay however interprets the sources patterned after and with a thorough understanding of the beliefs and ideas of the age. King seems to be more direct in his approaches which I think is more appropriate for investigating scientific phenomena than historical one. I believe that when one investigates history he should also be aware of the many influences of forces (both seen and unseen) that leads to the action of men.