Policing and Punishment in Nineteenth Century Britain

Victor Bailey, Victor Bailey

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781317374886
• Edition: 1
• Topic: History
• Subtopic: World History
• Index: History

In the years between 1750 and 1868, English criminal justice underwent significant changes. The two most crucial developments were the gradual establishment of an organised, regular police, and the emergence of new secondary punishments, following the restriction in the scope of the death penalty. In place of an ill-paid parish constabulary, functioning largely through a system of rewards and common informers, professional police institutions were given the task of executing a speedy and systematic enforcement of the criminal law. In lieu of the severe and capriciously-administered capital laws, a penalty structure based on a proportionality between the gravity of crimes and the severity of punishments was erected as arguably a more effective deterrent of crime.

This book, first published in 1981, examines the impact of these two important developments and casts new light on the way in which law enforcement evolved during the nineteenth century. This title will be of interest to students of history and criminology.

1 Introduction

Victor Bailey

In the years between 1750 and 1868, English criminal justice underwent significant changes. The two most crucial developments were the gradual establishment of an organised, regular police, and the emergence of new secondary punishments, following the restriction in the scope of the death penalty. In place of an ill-paid parish constabulary, functioning largely through a system of rewards and common informers, and often depending on the backing of local para-military forces and the army, professional police institutions were given the task of executing a speedy and systematic enforcement of the criminal law. In lieu of the severe and capriciously-administered capital laws, given renewed legitimacy by Paley's doctrine of maximum severity and discretionary selection, a penalty structure relating the gravity of the crime to the severity of the punishment was erected as arguably a more effective deterrent of crime. Accordingly, the death penalty made way for penal transportation, 'that great sewer which for so many years carried away the dregs of our population', in M.D. Hill's evocative words, and for indigenous prison establishments.¹

The alterations in the modes of policing and punishment were closely linked. They derived from the conviction that an effective system of criminal justice required both a mitigation in the severity of penalties and a reformed and efficient police. They were also mutually reinforcing. Enthusiasm for police reform was charged by the belief that amelioration of the criminal law would be more acceptable if fewer offenders were to avoid capture. More significantly, this massive reorganisation of criminal justice, affecting the spheres of detection, prosecution and punishment, led ultimately to a decided increase in the scale and scope of legal authority. No longer was the enforcement of the criminal law made to rely upon the private initiative of thief-takers, voluntary associations for self-protection and contractor-gaolers. Instead, the responsibility was progressively delegated to the agents of a professional police and prison system. In the realm of criminal justice, laissez-faire retreated before the imposition of a widespread apparatus of law and order.

While it is possible, in this way, to sketch the broad outlines of the changes in criminal justice, large lacunae exist in our knowledge. This is only to be expected of a relatively new field of historical inquiry. The present essays are offered, therefore, as a contribution to a richer understanding of developments in nineteenth-century policing and punishment. In general, the authors have mined new seams of regional and national documentation, and present their findings in the form of detailed case-studies. The essays emphasise less the pre-planned, executive imposition of a new and formal authority, and more the localism, diversity and continuities in the administration of criminal justice. Before examining the essays individually, however, it will perhaps be best to take stock of the existing literature in the fields of policing and punishment, insofar as it forms the backdrop to our own contributions.

I

In the historical literature on nineteenth-century policing, two main themes have claimed attention. The first concerns the factors which led to the foundation of the Metropolitan (1829), the borough (1835) and the rural (1839) constabularies. The traditional perspective is to see the evolution of the modern police as 'a Whig (more exactly, Benthamite) march of progress, the true end and goal being an efficient, centralized, nationally directed constabulary force'.² Drawing, in particular, on the lurid examples of the state of the unreformed police and on the recommendations of a professional police, to be found in the First Report of the Constabulary Commissioners (1839), historians of this persuasion have dignified the statist Utilitarians as farsighted reformers acting with a benign regard for the public interest.³ Against this view, is an explanation which emphasises conflict rather than consensus. In this approach, the introduction of the police was a reassertion of state power in the face of a new and threatening conjuncture. In the 1830s and 1840s, urban disorder was thought to presage an upsurge of the 'dangerous classes', against which the old techniques of policing would be inadequate. Hence the evident deficiencies of a frightened constabulary, a paralysed magistracy, and an exhausted military in the face of an insurgent Chartist movement, is said to have induced the government in the summer of 1839 to countenance reform of the rural police. A professional and bureaucratic control of urban and industrial society would, it was conceived, insulate the powers that be from popular animosity, at the same time as effectively combating crime and disorder.⁴ An integral feature of this second interpretation is the popular hostility which met the 'New Police', suggesting, at the least, that police reform was not based on some broad consensus of opinion.⁵

A number of smaller motifs enrich the historical debate on the origins of the reformed police. One argument has been to reassert the influence of the incidence of ordinary crime as against the role of popular unrest. As it has been noted, Peel's speech proposing the Metropolitan Police Bill in 1828 referred only to the recent increase in the number of committals for property crime.⁶ So, too, the Constabulary Commissioners' Report of 1839 emphasised the profitability of a criminal career (especially in the poorly-policed rural areas into which bands of criminals were said to be migrating) more than it did the crimes of organised workmen or political radicals. And, anyway, the Report was completed before any major Chartist outbreak.⁷

Another argument has been to emphasise the resistance to the march of constabulary improvement on the part of broad sections of the ruling elite. The nineteenth-century gentry, Whig and Tory, rural and urban, had inherited a resilient cultural antipathy to the extension of Royal and governmental power. Thus the advocacy of a preventive police raised fears of a large standing army and a 'continental' system of spies. This resistance was not simply antiquarian, but the assertion of the value of local and voluntary peace-keeping above that of centralised power.⁸ Not everyone was dissatisfied with the parochial and corporate police. The replies to the Constabulary Commissioners (systematically doctored by Edwin Chadwick before they saw the light of day) commonly declared that the local agencies of law enforcement were equal to the current level of crime; that criminals were not escaping detection and prosecution; and that savings would not necessarily be effected by the institution of a reformed police.⁹ Doubtless for this reason, the Rural Police Act was only gradually implemented, and moves were made in several counties to disband or reduce the size of the force which had been established.¹⁰ It is a pattern which suggests both that the consensual view of police reform has underplayed the local resistance to a centralised police structure, and that the conflict view has too readily assumed the existence of a unified ruling elite, spurred into action by social fear. In all, the social reality which the historian is increasingly uncovering suggests the myopia of highlighting any one set of interests and events to explain the rise of the new police.

The unbroken contemporary debate and dispute about the value of a paid constabulary necessarily affected the organisation and day-today activities of the reformed police — the second main theme of the historical literature. According to some historians, the police must be credited with a concerted drive against working-class street and social life. Such provocative interference in the patterns of life and leisure of working-class neighbourhoods, it is claimed, soured police-community relations, and, as in areas of public mistrust of the police today, inspired a large number of assaults against individual constables.¹¹ Other historians, while accepting that the coming of the new police led to an intensification of external supervision over the lives of the poor, have emphasised rather the fact that the police gradually, if grudgingly, secured public co-operation, and have sought to explain this by examining the ideological and practical limits to police authority.

The Metropolitan Police offers perhaps the clearest example of the way in which the political culture of a community acted as a constraint on the style of law enforcement. Set to work in the context of intense class conflict, the Metropolitan Police Commissioners strove to evoke public acceptance of 'Peel's bloody gang' by creating a disciplined force which would act in accordance with impartial legal standards. The distinctive public image of the London bobby was shaped by policies of recruitment and residency which severed the contact between constable and community; by monitoring police behaviour in matters large and small; and by restricting the scope of police discretion to powers justified by the law.¹² Additionally, the stipendiary magistracy vetoed enforcement strategies which were felt to overstep the mark.¹³ It seems unlikely that the police were entirely immune from using the wide discretionary authority which, for example, the Metropolitan Police Act (1839) accorded them. Nor did the lustre of impersonal authority avoid the occasional blemish. In the 1860s, and again in the 1880s, evident police incompetence in the face of public disorder provoked a crisis in police-public relations.¹⁴ Even so, a set of rules and expectations emerged from this running argument between police and public, which constituted a sort of contract in furtherance of judicious policing.

In contrast, the work on the provincial police has tended to stress the limitations to police authority which were imposed by the slowness and incompleteness of reform, and by the unfailing variety in the strength, payment and efficiency between the numerous separate police forces.¹⁵ The calibre of the first recruits certainly left something to be desired. The tendency of police authorities to draw upon the old night-watchmen and day constables did not help. Nor did the long hours for low pay, which ensured that few recruits joined except out of instrumental considerations, such as clothing and security. Not surprisingly, the early provincial police (as indeed the early metropolitan force) was renowned for inefficiency, indiscipline (notably drunkenness) and a massive turnover of constables. The initial emphasis on the preventive maintenance of order, as opposed to 'pro-active' detective work, also meant that the new police were little improvement on the parish watches in the suppression of serious crime. The largest number of persons arrested by the police in the early days were drunks, vagrants and 'disorderly characters'.¹⁶ This situation was hardly improved, at least in the boroughs, by the occasional uncertainty as to which body - watch committee, magistracy or head constable — was in charge of the recruitment and appointment of constables, and of the executive role of the police. The Municipal Corporations Act (1835) provided no clear-cut answer on the occasions when these bodies came into open conflict. And, finally, until the 1850s, this rampant localism remained largely unhindered by central authority.

No radical alteration in the general structure of policing took place following the County and Borough Police Act of 1856.¹⁷ This statute, which emerged in the context of the ending of transportation and the implementation of a convict licence system, made it compulsory for all counties and boroughs to establish police forces, and imposed a modicum of central scrutiny and direction of police duties, notably by the machinery of an inspectorate. It was an uphill struggle for the Inspectors of Constabulary to shape a uniform police system out of the 200 separate forces in England and Wales at mid-century. They had more success in enhancing the popularity of the police within middle-class circles, by assigning to the police a number of service functions: the inspection of weights and measures, the inspection of lodging houses, and the enforcement of the licensing and vagrancy laws. In short, the nineteenth century witnessed little substantial change in the organisation of the provincial police; the local autonomy and character of policing remained undiminished. It meant, above all, that professional police solidarities or national administrative precepts only slowly imposed themselves between the police and the public.

II

It was in the nineteenth century that indigenous penal institutions first became the keystone in the punishment of crime. As early as 1805, despite the existence of a large number of capital statutes, capital punishment was no longer the chief weapon in the state's penal armoury. The majority of those convicted, at this date, were sentenced to the two main secondary penalties of the era, transportation and imprisonment. By 1860, imprisonment, especially for short terms of six months and under, accounted for 78 per cent of all sentences imposed at higher courts; penal servitude (the substitute for transportation) for 18 per cent.¹⁸ Until 1877, the prison system was, of course, divided into two separate administrative units. The local prisons, successors of the bridewells and houses of correction, were run largely by the local magistrates, and held mainly minor offenders and debtors, plus those convicts who were either awaiting transportation or serving the initial stage of a sentence of penal servitude. The system of transportation, the hulks and the convict prisons were the responsibility of the central authorities. Each of these administrative branches had its own complex history, which requires a brief assessment, before turning to the trends in penology.¹⁹

The early decades of the nineteenth century saw the development, under the twin influences of utilitarianism and evangelicalism, of a reform campaign, which sought to bring order, hygiene and discipline to the unreformed local prisons. At first, the reformers recommended the introduction of classification (on the basis of sex and offence-type) and of productive labour. Peel's Prison Act of 1823 put the government imprimatur on this policy. But gradually, assisted by the prison inspectorate, official policy was converted to the penitentiary idea of separation, religious instruction and hard labour. Pentonville was constructed in 1842 to serve as a 'model prison', the design and regimen of which was intended to guide the magistrates in the erection or improvement of local prisons on the separate system. For the next decade, the tenets of separate confine...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Original Title
• Original Copyright
• Contents
• Foreword
• Acknowledgements
• 1. Introduction
• 2. Private Initiative in Law Enforcement: Associations for the Prosecution of Felons, 1744-1856
• 3. Police, Power and Community in a Provincial English Town: Portsmouth, 1815-1875
• 4. The Police and the Public in Mid-nineteenth-century Warwickshire
• 5. The Metropolitan Police, the Home Office and the Threat of Outcast London
• 6. Penal Servitude 1846-1865: A System in Evolution
• 7. Public Opinion and Law Enforcement: The Ticket-of-Leave Scares in Mid-Victorian Britain
• 8. Grinding Men Good? Lancashire's Prisons at Mid-century
• 9. Magistrates and Madmen: Segregating the Criminally Insane in Late-nineteenth-century Warwickshire
• Notes on Contributors
• Index