Skip to content

Response to Review no. 168

I am thankful to Professor Emsley for his very positive review and in particular for suggesting my work is on a par with the groundbreaking research of Thompson, Hay and the Warwick school. As Professor Emsley rightly points out, that work has been the starting point for a great deal of recent research and it has shaped many facets of my book. Indeed it is something of a paradox that while I deeply admire Thompson and Hay’s work on the role of the criminal law in eighteenth-century English social relations and look up to them (along with John Beattie) as the giants in this field, my book is also to some extent an attempt to critique their analysis of who used the criminal law, in whose interests and for which purposes. Through a much more detailed analysis of the forces that shaped discretionary choices within the criminal justice system than that which was possible in Hay’s wonderful, path-breaking but brief essay ‘Property, Authority and the Criminal Law’ I have argued that the law can best be seen as an arena of struggle and negotiation between different social groups, and between different ways of thinking about the purposes of punishment and about the legitimacy of the Bloody Code. By looking at every stage of the criminal justice process in detail I tried to unravel the complex (and by no means always elite controlled) forces that shaped discretionary decision-making. I hope that the resulting book has honoured Thompson and Hay both by building on and by critiquing their work.

Professor Emsley also raises a number of specific questions that I would like to respond to here. I agree with his comment that in the 1780s the fact of defeat and the internal dissension’s which followed were important parts of the background to the temporary tightening up of penal policy during that decade. I also agree that it would be useful to assess the impact of the Revolutionary and Napoleonic wars – and the concerns they generated – on penal and policing policy. Although I did not draw this material together in my conclusion in any depth, the detailed evidence I uncovered for provincial areas like Essex indicates, I would suggest, that major disjunctions in penal policy are more obvious in the 1780s and the post 1815 period than during these wars. The 1770s and 1780s witnessed the enthronement of imprisonment as the new key sentencing option. The 1780s saw experiments with solitary confinement and prison reform which largely died away in wartime only to reappear as a major agenda after 1815. Even policies towards hanging only seem to shift decisively in the last few years of the war. Sources on the history of policing in provincial England are not consistent enough to assess precise chronologies but overall this war time period seems to have been part of a long term, and slower, process of change.

The review also raises another interesting issue by asking the question ‘what prompted the decline of the informal extra-judicial sanction’. I didn’t address this directly because I am very unsure whether there was a general decline in the period 1740-1820. The justicing diaries of men like Hunt and Whitbread are very difficult to compare in many ways – every surviving J.P.’s notebook is very individual because there were virtually no rules governing their compilation – but they both indicate widespread use of informal mechanisms. Lacking consistent records of this sort across the vital period from the 1780s to the 1820s, I know of no way of determining whether there was any significant decline across all categories of offender. My recently published work on the rapid rise of juvenile delinquency after 1815 does imply a change from diversion to discipline, from informal to formal sanctions, but for other types of offender I have found no clear evidence of such a movement until the legislative changes of the 1820s or the beginning of the coming of the New Police after 1829. Lacking a clear indication of change over time for a full range of offenders I did not feel I could offer explanations. Professor Emsley is right, however, to point out that change over time is a vital theme and I hope to address that theme from a number of different directions in the book of essays I am currently working on – Remaking Justice from the Margins, Crime and Law in the Age of Reform. The current book persistently returns to a structural theme – the role of the law in eighteenth century social relations -and as such is less focussed on the rapid changes of the early nineteenth century than on the debate eighteenth century historians such as Hay have been involved in, but I have been working on the later period and can promise the reviewer that I will return to the complexities of exploring and explaining change over time in my book of essays.