In the preface of Albion’s Fatal Tree the authors explain that their main concern is the law in eighteenth century England as both ideology and actuality. “We are equally concerned with criminality itself, the offences, the offenders and the popular myths of offenders (such as highwaymen and smugglers) as part-hero, part dreadful moral exemplars” (13). Though noting the real difference between “social crimes”—the socially accepted (if vaguely) kind, e.g. poachers, rioters, smugglers—and unqualified crimes, the authors admit the inability of separating the two.
Douglas Hay’s first chapter “Property, Authority and the Criminal Law” examines a paradox: The eighteenth century saw a veritable inflation of new laws aimed at the preservation of property and most of them were deemed capital offenses. He traces the proliferation of “legal instruments which enforced the division of property by terror” (21). But these bloodier laws and increased convictions did not translate into ballooning numbers of executions. His explanatory hypothesis is that “criminal law, more than any other institution, made it possible to govern eighteenth-century England without a police force and without a large army. The ideology of the law was crucial in sustaining the hegemony of the English ruling class” (56). Although “middling” humanitarians called for reforms to the law, ruling elites resisted drastic legal reforms despite the uneven enforcement of law and punishment.
Hay explores the law as an ideological system through its combination of “imagery and force, ideals and practice” via three aspects: “majesty, justice and mercy” (26). The magisterial spectacle of the trial and the gallows transmitted the terror of the law symbolically and materially. While the equality of people before the law, both as actuality and “ruse,” also helped solidify the “mystery and majesty of the law” (59). The occasional prosecution of the propertied—justice as spectacle—helped solidify the law’s effectiveness as ideology. Like Thompson, Hay presents a sophisticated presentation of the “rule of law”: “The law thereby became something more than the creature of a ruling class – it became a power with its own claims” (33).
Mercy through the uneven application of punishments through repeated issues of pardons worked in much the same way. Mercy, besides being a vehicle for patronage, helped maintain the fragile balance of the law’s central ambiguity: “A century later, the ambiguities had still not been altogether resolved in the law, which in its ideological rule had to reconcile popular ideas of justice with the absolute claims of property” (36). Mercy and the unevenness of punishment it implied “allowed the rulers of England to make the courts a selective instrument of class justice, yet simultaneously to proclaim the law’s incorruptible impartiality, and absolute determinacy” (48).
Like Foucault, Hay sees a necessary economy of punishment in the law: “The law makes enough examples to inculcate fear, but not so many as to harden or repel a populace that had to assent, in some measure at least, to the rule of property” (57). Indeed, in helping the hegemonic reign of the law, elites exposed their property to a much higher degree than under previous modalities of rule. Hay argues that elite hegemony had been hobbled by the decline of the church, the divine right of kings, and the rise of direct challenges to authority in the form of widespread riots and the French Revolution (58-59).
However much [elites] believed in justice (and they did); however sacred they held property (and they worshipped it); however merciful they were to the poor (and they were); the gentlemen of England knew that their duty was, above all, to rule. ON that depended everything. They acted accordingly. (53)
Peter Linebaugh’s chapter “The Tyburn Riot Against the Surgeon” details how the horrific synergy between anatomy and capital punishment was overturned by what the papers dismissively called “a mob.” A precondition for the advancements in medicine and anatomy in the eighteenth century depended on the “ability of surgeons to snatch the bodies of those hanged at Tyburn” (69). The century marked a significant change in attitudes towards the dead human body. “The corpse becomes a commodity with all the attributes if a property” (72). Some put it in terms of scientific utility and political economy: “supply and demand” (73). But surgeons face a procurement problem; any number of policies failed to secure a cheap and ready supply of dead people (76). That is, until physical dissection of the corpse became a method of “aggravating capital punishment” in 1752—a kind of second death culturally found as terrifying as the first. But a “loose and disorderly crowd,” as one account put it, managed to stop the practice.
Families of the hanged were forced to make arduous trips to the gallows and physically retrieve the body of their loved ones to save the corpse from the surgeons’ scalpels. Body-snatching surgeons caught on and would pretend to be family members on execution day (80). Tyburn crowds saved countless bodies either through solidarities of family, friends, work-profession, the Irish, and sailors—though such distinctions were often transcended in the heat of the moment. Though not all working class-based solidarities, Linebaugh writes that the Tyburn crowds “shows the mutuality of the poor, their solidarity in the face of personal disaster. Such evidence reminds us to on our guard against those glib explanations of urban crime… which refer so easily to the anonymity of city life” or urban social atomization (83). The Irish who presented 16 percent of victims at the gallows in the first half of the century also came to their mutual aid (of Irish bodies). The “deep-sea proletariat,” who already had good reasons for animosity against hospitals and surgeons, presented a quarter of those hanged in the same period (86).
One reason for the hostility was the rare—but not unheard of—possibility of coming back to life after a hanging, an imperfect mode of execution to say the least. Some condemned even prepared for such a possibility (103-106). Another aspect involved the popular perception of the possibility of “troubling” (i.e. haunting) the living, if not given a proper burial. Riots were sparked by such sentiments. “A belief in life after death, especially in the forms we have described, was connected with beliefs about justice, the law and the value of life. In these cases therefore the added humiliation of the surgeon’s scalpel to the hangman’s noose rendered the injustice of the law all the more loathsome” (109). Rather than a blood-thirsty culture of death, what Linebaugh uncovers is the way in which “the proper, respectful treatment of the dead was a profound and serious concern to the crowds attending Tyburn hangings” (116). “Against that policy, with its shame and its disgrace, the men and women beneath the gallows’ tree had to fight to provide decency for the dead and, like Antigone, to restore peace to the living in the bitterness of their loss” (117).
Cal Winslow’s essay “Sussex Smugglers” provides a social history of smuggling in southern England along with the government’s ferocious attack, led by the Duke of Richmond, against smugglers and smuggling communities. Of course, government complicity (or at least negligence/ambivalence) was widespread (140-143). Winslow attributes smuggling to various factors: for one, authority in the English countryside was extremely brittle and smuggling further eroded traditional forms of deference. The local gentry tried to fill the vacuum by organizing its own militias (133, 155). This fact alone shows that smuggling was much more than “just” smuggling; Winslow indeed claims that smuggling was a form of (guerrilla) class warfare. Duties on tea and other sorts of tariffs also made smuggling a particularly lucrative enterprise and a welcome one for the general poverty of the countryside (143).
What authorities found particularly threatening about smuggling was the degree of public acquiescence and even approval with which it met. Among the Sussex poor it was a perfectly legitimate enterprise (149). But smuggling was also structurally aligned with capitalist development; it helped plough spaces far from centers of distribution and greasing England’s international trade facilities. “The smugglers both resisted and enhanced the development of capitalism; in each case they paid dearly for their efforts” (154). Winslow positions Sussex smugglers close to Hobsbawm’s social banditry:
Eighteenth-century smuggling involved a mixture of social forms of resistance. Because most of the actual fighting was between the plebian gangs and the forces of the Government, and because the smugglers believed they were protecting their ‘rights’, the conflict contained elements of class war. This is also the case in the plunder of the gentry, to the degree that it actually happened. (158)
John G. Rule’s contribution on “Wrecking and Coastal Plunder” is another example of a “form of criminal action [that] could be persistently employed by whole communities, when its only legitimacy lay in the realm of custom” (186). “Wrecking” describes the illegal seizure of materials (including ship parts) and cargo of shipwrecks along the English coast. Rule shows it was a mostly rural activity that provided households with badly needed building materials (nails, timber, etc.) and various consumer goods and merchandise—all beyond the material reach of the wreckers. In some places it was practically a full-time occupation (173), while in others it was more ad hoc. In either case, it resembled a crowd activity. Some accounts show some pretty violent actions towards the shipwreck survivors—including rape—while others claim wrecks lured ships into sketchy waters through fake lighthouses or ship lights (180), but the evidence for this is rare and mentions scarce. Although a clear concern of authorities and subject to draconian laws, Rule explains how the collective nature of the actions—entire villages—made wrecking difficult to punish.
The final two essays by Douglas Hay and EP Thompson will be left for another day.