Review

Reviewed Work(s): Albion's Fatal Tree: Crime and Society in Eighteenth Century
England by Douglas Hay, Peter Linebaugh, John G. Rule, E.P. Thompson and Cal
Winslow: Whigs and Hunters: The Origin of the Black Act by E.P. Thompson
Review by: Gerda Ray
Source: Crime and Social Justice , fall-winter 1976, No. 6 (fall-winter 1976), pp. 86-93
Published by: Social Justice/Global Options

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 Douglas Hay, Peter Linebaugh, John G. Rule,
E.P. Thompson and Cal Winslow,
ALBION'S FATAL TREE: CRIME AND SOCIETY
IN EIGHTEENTH CENTURY ENGLAND
E.P. Thompson, WHIGS AND HUNTERS:
THE ORIGIN OF THE BLACK ACT
Douglas Hay, Peter Linebaugh, John G. Rule, E. P.
Thompson and Cal Winslow, Albion's Fatal Tree: Crime
and Society in Eighteenth Century England, New York:
Pantheon, 1976. $5.95 (paper).
E. P. Thompson, Whigs and Hunters: The Origin of the
Black Act, New York: Pantheon, 1976. $5.95 (paper).
Reviewer: Gerda Ray*
* Gerda Ray works at the Center for Research on Criminal Justice
and is a graduate student in history at the University of California,
Berkeley.
With the threat of Senate Bill 1 temporarily at bay, we
can take time now for a new look at what might be called
its eighteenth-century predecessor, the Waltham Black Act
(9 George I c.22) of 1723. Like Senate Bill 1, or the
Criminal Justice Reform Act of 1975, as it is known by its
sponsors, the Black Act constituted an entirely new
criminal code. Framed ostensibly as an emergency measure
to meet the crisis of deer-stealing in the royal forests of
Hampshire and Berkshire by "wicked and evil-disposed
persons going armed and in disguise," the Black Act was
prolonged in 1727 and renewed successively until it was
made permanent in 1758. The Black Act fortified an
already severe criminal code with more than 200 capital
statutes, including both new crimes and increased penalties
for old crimes. The crime of arson, for example, was
expanded to include burning or even the threat of burning
cornstacks, haystacks and small parcels of grain (Radzi
nowicz, 1948.-4-76).1
Line Senate Bill 1, the Black Act not only increased the
severity of punishments; it also provided for new measures
of prosecution and trial which made defense more difficult.
The right to a jury trial was partially vitiated by the
provision that trials under the Black Act could be held in
any county, not only the county in which the offense had
been committed. Suspected offenders, who refused to
surrender themselves within forty days after the Privy
Council had proclaimed (accused) them on the basis of
informations from credible witnesses, could be summarily
judged guilty without trial and sentenced to execution if
apprehended. The government's effort to encourage spying
and informing was bolstered by the clause which held the
local community (the hundred) in which the offense had
been committed liable for damages unless the culprit were
found, prosecuted and convicted within six months. The
Black Act further facilitated prosecution by extending the
time limit on initiating a case to three years (Thompson,
1976:151, 174).
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Gerda Ray
Brief in comparison with the 753-page Senate Bill 1, the
loosely drawn Black Act nevertheless provided the basis for
a century of expanding legal judgments which increased
both its scope and severity. A 1749 decision, confirmed and
expanded in the Coal Heavers' Case of 1768, denied benefit
of clergy to aiders and abettors as well as to a principal in
the first degree. The definition of cattle, which were to be
protected by the Black Act from killing, maiming or
wounding, came to embrace mares, colts, asses and pigs,
and judges ruled that the beast's injury need not be mortal
or even permanent to exact the death penalty (Thompson,
1976:22; Radzinowicz, 1948:425-26).
The disquieting parallel between the Black Act and
Senate Bill 1 extends in part to their legislative histories.
The machinations of Attorneys General John Mitchell and
Richard Kleindienst, the architects of Senate Bill 1, do not
hold a candle to the unscrupulous, not to mention
successful, policies of the Black Act's Sir Robert Walpole;
but their efforts to increase and centralize state authority,
enlarge the criminal strata, and undermine class and
community solidarity?all under the guise of fighting
crime?were similar. The Black Act, like nine-tenths of the
eighteenth-century capital statutes, was adopted by an
uninterested Parliament with little opposition or debate,
and finally made permanent without any debate (Thomp?
son, 1976:21, 206; Hay et al., 1976:20-21). Senate Bill 1,
on the other hand, while similarly intended to ride the
popular fear of crime to fast enactment, broke instead on
the shoals of Watergate and the escalating opposition to
governmental repression. That opposition has included an
aggressive propaganda campaign, rallies, petitions and
personal appeals to legislators. Our continuing success in
defeating draconian criminal legislation, and in building the
movement which can sustain this kind of struggle, will
depend in part on an accurate class analysis of the criminal
law. A reexamination of eighteenth-century criminal policy
can aid in that task by puncturing some of our false and
misleading assumptions about the origins of our criminal
code.
Most criminologists and historians of the criminal law
have based their studies on a series of naive and
contradictory assumptions about eighteenth-century
English criminal legislation. Taking their cue from
Enlightenment critics like Voltaire (1971) and Beccaria
(1963), they have judged the code to be altogether
unsatisfactory, inefficient and inhumane, by the pseudo
scientific credo of certainty rather than severity of
punishment. Yet historians have also by and large ended by

The Devil's Am-, Westminster.
Not ire the three descending layers of incrcasingly
s<|iialid development, Gustave Don'
justifying such barbarities as the Black Act as necessary
measures to deal with special emergencies and the general
problem of ever-increasing crime. No one recalls the
hanging of seven-year-olds for stealing a penny handker?
chief with any enthusiasm. But commentators have more
than balanced their disapproval of cruel punishments with a
nice appreciation of the problems of crime control and
social disorder in that "pre-scientific" age (Radzinowicz,
1948:24-34; Plumb, 1961:16; Stone, 1974).
In the last few years, however, several English historians
working in a Marxist tradition have successfully challenged
this prevailing understanding. Unlike the recent Marxist
oriented studies of American criminal justice history, this
work has been undertaken primarily by historians whose
interest in crime grew out of research in labor history. By
starting from Marxism and the historical experience of the
working class, rather than from criminology or legal
history, these historians have grasped the impossibility of
analyzing crime as a simple legal category.
Although American labor historians have followed the
work of their English counterparts, its impact has yet to be
fully felt in the field of criminal justice history. Two recent
works, however, E. P. Thompson's Whigs and Hunters, a
study of the origins, operation and social context of the
Black Act, and Albion's Fatal Tree, a collection of essays
on crime and society in eighteenth-century England by
Douglas Hay, Peter Linebaugh, John G. Rule, E.P.
Thompson and Cal Winslow, merit close attention. Both
books grew out of the shared interests and coordinated
researches of their authors, all of whom have been
associated with the Centre for the Study of Social History
at the University of Warwick. The results of their
collaboration speak well for the value of collective work.
Each essayist in Albion's Fatal Tree, while detailing a
particular aspect of crime and punishment, such as coastal
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wrecking or Tyburn crowds, addresses himself to the
group's common concern with the meaning of criminality,
the function of criminal justice and the role of law in the
development of the state and society. Whigs and Hunters
revolves around the same themes, and the two books may
be usefully read together. Each is helpfully illustrated with
maps, telling portraits of the ruling class and satirical
drawings.
Albion's Fatal Tree and Whigs and Hunters are
important books, too rich for neat summary of argument,
much less of evidence. Here I would like to note some of
the ways in which they have advanced our understanding of
eighteenth-century crime and punishment and sketch out
the theoretical and methodological implications of this
work for students of American criminal law and
criminology.
I. CRIME
Thirty-seven years ago, Georg Rusche and Otto
Kirchheimer prefaced Punishment and Social Structure
(1967) with the bold assertions that punishment is not
primarily a response to crime, and that crime itself is not
incidental or aberrant, but integral to the development of
capitalism. Both crime and punishment, they insisted, must
be studied historically, with reference to changes in the
forces and relations of production. Their work has not
received the study it deserves, and even the Warwick
historians do not refer to it. Their researches, however, do
much to flesh out and sharpen the Marxist analysis of
crime.
Even a quick reading of the two books makes
inescapable the conclusion that crime was endemic in
eighteenth-century England. Until recently, historians'
attention has been focused almost exclusively on London,
or, more particularly, the tumultuous districts of St. Giles
and Southwark. They identified crime as an urban
phenomenon of crowded London and the provincial
centers, and adopted the viewpoint of the bourgeoisie in
seeing offenders as a special subculture within the licentious
poor, struggling to survive without resort to honest work.
Jonathan Wild and his nefarious gang of thieves,
pickpockets, murderers and informers was used to illustrate
a highly developed, close-knit criminal underworld (Plumb,
1961; Rogers, 1975). By portraying crime in this fashion,
historians mirrored the bourgeoisie's non-explanation of
crime, and relied upon the bad assumption that criminal
activity was an unpleasant but unavoidable byproduct of
increasing wealth and the ensuing need to protect it.
In fact, the very process of capital accumulation entailed
criminal activity. In their five-century struggle to wrest
domination from the Crown and aristocracy, the rising
bourgeoisie had used any means necessary to increase their
wealth: some, such as enclosure, were legal; and others,
such as rent-raking, grain speculation and revolution, were
not.2 By the eighteenth century, the best access to the
ruling class was through trade, finance and high politics, all
of which .were rife with lawlessness (Thompson, 1976:198,
245; Hay et al., 1976:232-39).
A century earlier, England's international trade had
expanded alongside of and in part out of open piracy. Sir
Fall-Winter 1976187
Francis Drake, for example, whose Golden Hind is famous
as the first English ship to circle the globe, was a pirate and
slave-trader (Rochester, 1949:11-13). In the eighteenth
century, smuggling often served to open new trade routes
or augment legal exchange. Smuggled tea, estimated at
more than 3,000,000 pounds annually, amounted to
perhaps three times the quantity legally imported.
Smuggling was very profitable and involved people from all
social classes. Even the redoubtable Prime Minister Walpole
imported his French wines illegally.3 Within England there
was an extensive illegal trade in game and mutton which
likewise involved people from almost all classes. The
criminality of high finance and high politics was exposed by
the South Sea Bubble scandal in 1720, which involved the
King's mistress and possibly the King himself. Popular
ballads and cartoons frequently compared statesmanship
with crime, while the law enforcement apparatus, relying
on a blood money reward system, was itself profoundly
corrupt (Hay et al., 1976: 34, 121-54, 202-7; Thompson,
1976:196,216).
Crime was not, then, an aberrant activity of the urban
poor. Nor was it limited to the mercantile gentry or Court
parasites. Throughout the countryside, where some
historians claim the pattern of life was more stable (i.e.,
bound together with family ties and humble deference to
the authority of the landed gentry, justices of the peace
and representatives of the Crown on the part of the lesser
gentry, yeomen and rural poor), crime was part of the
everyday activity of thousands of people.
Albion's Fatal Tree and Whigs and Hunters focus for the
most part on one aspect of this pervasive criminality:
crimes which were integral to the local economies of the
rural poor, which included the communally sanctioned
practices of poaching, smuggling and wrecking. These
activities were similar in that each involved, to varying
degrees, the assertion of traditional communal rights to
subsistence against newly created or freshly enforced
bourgeois claims to the supremacy of their private
property. For the foresters of Hampshire and Berkshire, the
short-lived episode of Blacking was but an instant in their
long struggle to lay claim to the products of the forest and
to protect their gardens and trees from the depredations of
the deer. For many of the poorer coastal villages, wrecking
(the appropriation of goods from shipwrecked vessels) was
an important economic activity. What the authors of
Albion's Fatal Tree and Whigs and Hunters make clear is
that the study of the rural poor's defense of non-monetary
use-rights, often at point of arms and in open defiance of
the authorities, cannot be isolated from this historical
setting. Each of these acts of appropriation, from cutting
furze to smuggling, were illegal and subject to criminal
sanctions which increased in severity throughout the
eighteenth century. They were also, however, a form of
class struggle against the growing hegemony of capitalist
relations. Poaching, smuggling and food riots persisted
despite the harsh penalties, not because of the reproduction
of a criminal subculture, but rather because of the
persistence of anti-capitalist social ideas and relations (Hay
et al., 1976:119-21, 149, 173).
The rural poor?and elements of the more prosperous
farmers-firmly believed in the legitimacy of using what
they thought to be communally held property and of
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rioting to exert some influence over grain prices.4
Communities in which poaching was prevalent held that
God made animals for man and acted on this conviction by
hunting "with passionate determination and courage."
Time had sanctioned many local practices. Deer poaching in
Hampshire and Berkshire counties, for example, had been
rampant during the Commonwealth, and it was not until
the Hanoverian ascension that the hunters faced strict
enforcement of the game laws. In addition to their assertion
of traditional rights, the foresters of Cannock Chase tried to
root their claim in ancient statute law. Seacoast wreckers,
who had no prerogative at law, based their claim on
centuries-old traditions, traditions strong enough to sustain
a remarkable degree of class solidarity in the face of legal
prosecution (Hay et al., 1976:191, 207-8).
This class struggle was not a simple battle between the
rich and the poor. In all but one of the monographs
reviewed, there are some indications of at least temporary
alliances among the rural poor, the small landholding
yeomanry and even the lesser gentry in defending
communal against capitalist property relations. Local
innkeepers and small merchants at times stood bail for
laborers indicted for smuggling, and in Cannock Chase the
lesser gentry mounted a vigorous effort in the courts to
assert their own and the villagers' rights over those of the
rabbit warrens. The rabbits and the large landholders who
owned them won; and when the struggle seemed doomed
the gentry abandoned the defense of the prosecuted
cottagers. Nowhere, however, was the bourgeoisie able to
consolidate its political rule without a fight.
In developing this analysis, the authors do not, for the
most part, make the error of romanticizing the historical
role of the poachers, wreckers or smugglers.5 Some readers
may miss this point, for all the authors are empathetic with
the working-class subjects of their study. But this empathy
does not blind them to the material ties between
communally sanctioned practices such as poaching and
communally proscribed activities such as highway robbery,
ties which make impossible an easy distinction between the
two categories (Thompson, 1976:193; Hay et al., 1976:88,
155-59, 175, 205-8). Nor do they make the error of
implying that all criminal activity was a blow to class rule.
"The Crime of Anonymity," E. P. Thompson's contribu?
tion to Albion's Fatal Tree, is a good example of his and his
colleagues' subtle approach to untangling the relationship
between criminal and political action. He argues that the
prevalence of anonymous threatening letters from the poor
against the rich is yet another indication that eighteenth
century England was far from being a harmonious
consensual society. In crisis situations such as food or
industrial riots, he argues further that the anonymous
letters were "intrinsic to protodemocratic forms of
organization, deeply characteristic of eighteenth-century
social and economic relations." He takes care to emphasize,
however, that the letter writers, despite their political
demands and consciousness, were not "impotent revolu?
tionaries," for they relied on magic rather than
organization, and were fundamentally resigned to the
inevitability of the social order. They were rebellious, but
so too were many other sectors of the population, and
taken together they did not constitute a revolutionary
movement. The working poor of eighteenth-century
England labored under a variety of productive relations,
and the bourgeoisie was still the revolutionary force (Hay et
al., 1976:271-308; George, 1971).
Our understanding of eighteenth-century criminality,
then, must make sense within the context of these class
struggles. So too, these authors maintain, must our analysis
of punishment.
II. PUNISHMENT
When we think about punishment in eighteenth-century
England, we shudder at the public executions and recall the
squalors of the jails John Howard visited. We tend to forget
that the bulk of legislation was concerned with civil law,
which was not only better codified but also occupied more
lawyers than the criminal code (Hay et al., 1976:21-22).
Our attention has focused on the brutal sanctions of the
criminal law; but while these were hurriedly adopted by
bored legislators, the same men dickered endlessly over
minor but potentially profitable points in the statute law
on land and the private law of contract and tort. Far from
mirroring the harshness of the criminal code, the civil law
came to provide what amounted to a dispute resolution
mechanism for the bourgeoisie's accumulation of capital.
William Holdsworth stated well the explicit political and
implicit class character of this process:
The result of this alliance [between common lawyers
and Parliament] was that in England the interpreta?
tion of the doctrine of the supremacy of law came to
be, not, as on the Continent, the omnipotence of a
fundamental law which no power in the State could
change, and only the lawyers could interpret, but the
ascendancy of a law which Parliament could change
and modify. In other words, in the sixteenth century
supremacy of the law came to mean the supremacy of
Parliament (Holdsworth, 1946:viii, 45).
In vastly extending the range and severity of criminal
penalties, Parliament, which by the eighteenth century was
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dominated by large merchants, financiers and their Court
allies, increasingly enlisted the coercive power of the state
in promoting capitalist over communal property rights. For
adjudicating commercial transactions among the bour?
geoisie, Parliament promoted polite recourse to the lawsuit,
with monetary rewards as damages. But for expropriating
the property of the poor, Parliament resorted to the
summary force of enclosure and criminal law. Enclosure,
the private partitioning of communal land and the new
cultivation of forest or waste, had been going on since the
fifteenth century. But it was not until the eighteenth
century that the national government actively legislated the
destruction of the productive and social relations of the old
order; and in the short period between 1761 and 1780
Parliament passed 4,039 acts of enclosure (Briggs,
1965:41).
Parliament also took strong measures in the area of
criminal justice. Most historians have attributed the truly
startling increase in the number of capital offenses6 to the
theory of blind retribution and the "barbarity of the age."
The provision of the Black Act, which transformed the
penalty for breaking the head of a fish pond from a
misdemeanor subject to a fine and damages to a capital
crime without benefit of clergy, is the classic liberal
example of the irrationality and inhumaneness of the
criminal law; and Radzinowicz lambasted the whole Act as
a sign of the "ascendancy of the doctrine of crude and
undifferentiated punishment" (Radzinowicz, 1948:33, 61,
79).
This idealist interpretation of punishment is a serious
hindrance to our understanding because it mystifies the
class character of the state. Liberal historians have
measured England's criminal policy against an abstract
conception of natural justice, bolstered with a blind faith in
criminological insight (Thompson, 1976:194-95). They
have been sharply critical of the system's brutality; and
Radzinowicz took care to note that while pickpocketing
was sanctioned with death, there was no penalty attached
to childstealing, then a common crime directed almost
exclusively against the laboring poor (Radzinowicz,
1948:22). He failed, however, to consolidate this insight,
and the rest of his compendious, invaluable research, with
the only mode of analysis which can account for its
complexity.
Albion's Fatal Tree and Whigs and Hunters, by contrast,
give a precise and full account of some of the actual
material and hegemonic functions which eighteenth-century
punishment served. In doing so, they altogether discredit
the "intellectual history" approach to criminal law. Rusche
and Kirchheimer (1967) pioneered this materialist effort to
comprehend punishment; and, after Marx, their work is still
the starting point for studying its role in the accumulation
of capital and transformation of social relations.7
These studies indicate that insofar as eighteenth-century
punishment was retributive, it was ruling-class retribution
on a calculated offensive. The blind fury of the bourgeoisie
accounted for the tone of eighteenth-century criminal
legislation, but its general principles were altogether
rational from the class stand of those who framed them
(Hay et al., 1976:73-77). E.P. Thompson documents, for
example, that the Black Act had been the subject of
prolonged discussion between Prime Minister Walpole and
Fall-Winter 1976189
the local forest officials months before its virtually
automatic enactment by Parliament. Its severity was not
the reflex action to an emergency, as Radzinowicz and
others have assumed. Severity and even brutality were an
integral part of a criminal policy designed to burn terror
into the hearts of a working population which still clung to
its own opposing notion of justice. This hegemonic
function of the criminal law is analyzed in the greatest
detail in the conclusion to Whigs and Hunters and in
Douglas Hay's "Property, Authority and Criminal Law," a
provocative article which tackles the familiar anomaly of
eighteenth-century criminal justice: the fact that while the
number of crimes subject to capital punishment continued
to increase, the number of hangings did not.8
One may take exception to some lines of Hay's
argument, but his analysis of pardoning, which cheated the
gallows of about half of those condemned to die, is very
convincing. His evidence demolishes the classical view of
pardoning as an irrational and unscientific counter to the
law's severity, a practice which historians have taken as
evidence of the humanitarian undercurrent which would
triumph in the liberal law reforms of the nineteenth
century. Hay does not, in this article, elaborate on the
economic importance of the punishments, imprisonment
and transportation, to which felons were pardoned, but he
does demonstrate its political importance as an instrument
of class control.
Pardoning was one of the means by which the ruling
class retained direct access to the operation of the criminal
law: an access which linked public execution to the
elaborate system of patronage, graft and influence-peddling
which characterized the everyday workings of eighteenth
century high politics. Pardons for convicted felons were
obtained?if at all?through the ministerial level wire-pulling
of a country Lord Lieutenant, often acting on the basis of
favors due the local gentry. Hays shows that this procedure
worked to enforce political loyalty and at least superficial
deference on a local level, and to promote consolidation of
ministerial dominance at the national level. Pardoning also
served as a convenient face-saving "out" for a prosecutor who
feared losing a difficult case or, through error, becoming
liable to be sued for false imprisonment (Hay et al., 17-63,
146,249-50).
Capital punishment and pardons were one extreme of
criminal justice. The other was the local magistrate's
summary authority. Free of the formal hurdles to
successful courtroom prosecution, justices of the peace,
frequently squires or clergymen, administered sanctions to
the poor quite informally. Often they did not keep records,
which, in addition to the poor's inability to pay lawyers,
virtually foreclosed appeal to their judgement (Rusche and
Kirchheimer, 1967:79; Hay et. al., 1976:192).
The Black Act further authorized justices of the peace to
grant indiscriminate search warrants, and many magistrates
also took direct action in confiscating the snares and
killing the dogs of poachers. Such thefts were a serious
blow to the foresters, and frequent fines added to their
hardship. In Cannock Chase, for example, the prevailing 5
pound fine for poaching was half the annual wage of a
laborer, and some offenders were forced to gaol or exile
because they could not pay (Hay et al., 1976:237-39).
The justices of the peace were, however, in a
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contradictory position, and their power did not always
match their authority. Albion's Fatal Tree and Whigs and
Hunters illustrate many cases of magistrates unwilling to
enforce certain laws because they either shared or simply
feared the local community's solidarity (Hay et al.,
1976:241-44; Thompson, 1976:60-62). The justices of the
peace, especially in riot situations, often found discretion
the better part of valor and acted on parochial rather than
legal definitions of crime. When their private interests were
threatened, however, as in the West Yorkshire turnpike
riots of 1753, they did not hesitate to call for royal troops
(Thompson, 1971).
Even when they were not reluctant, justices were
frequently simply unable to enforce unpopular laws
without material support from the large landholders and
the central government. Recourse to the army was often an
ineffective tactic of class control, and it proved inadequate
in the widespread food riots of 1766. Military support for
the magistry intensified in the eighteenth century, and the
state's increased role also took other forms, including the
infamous capital code. The national government also
interfered directly in a multitude of criminal cases. The
farmers and tradesmen who made up the panels of common
jurors at Quarter Sessions and assize were not always
inclined to the rigor of the law; so Parliament thoughtfully
provided that most game offenses could be prosecuted by
justices sitting without juries. The prosecution could also
better its odds by having a trial moved to the Court of
King's bench, where the jurors were usually reliable. By
financing prosecutions, planting informers and granting
indemnity to virtually anyone willing to betray his/her
compatriots, Ministry officials worked to ensure an
appropriate number of capital convictions (Thompson,
1976:51, 185-89; Hay et al., 1976:211).
The blood-chilling executions which followed were not
the expression of the undifferentiated brutality of the age,
but of the class hatred of the bourgeoisie (Thompson,
1976:214). Peter Linebaugh's researches reveal that even
the boisterous proceedings at Tyburn Fair, which earlier
historians have dismissed as the degraded sadism of London
criminals, were at least in part a collective expression of the
working poor's class solidarity. In attempting to save the
corpses of those executed from surgical mutilation, the
London mob acted on a conception of the dignity of
human life foreign to the law-makers. Lest we forget that
class struggle is a two-sided battle, Linebaugh recalls that in
this skirmish against the brutality of the age, the mob won:
after 1750, surgeons could only dissect the bodies of felons
sentenced under the Murder Act, and the poor buried their
own dead (Hay et al., 1976:102).
The bourgeoisie could not, even with its cruelty,
altogether stop practices which had enjoyed strong
community support for two hundred years and which were
still central to the poor's struggle for subsistence. Nor did it
seriously expect to eliminate the petty theft and personal
violence which had come to pervade whole districts of the
metropolis.9 The criminal law was a weapon of the
bourgeoisie, not in an imaginary war on crime, but rather in
the real and continuing class struggle. The demands of this
struggle made for an implicit acceptance of crime among
the bourgeoisie, who came to openly acknowledge the level
of social contradiction necessary to the continued
exploitation of capital accumulation. For the poor, this
class struggle meant that, like it or not, crime and the rigors
of the criminal law were part of their daily experience. If,
with our liberal colleagues, we persist in analyzing
punishment exclusively as a response to crime, we must
follow them to their own dead end of bewilderment.
III. THEORY AND METHOD
Marxist analyses of crime and punishment, however, can
help us make sense of our own world of repression and
struggle and of the history to which it belongs. Both
Albion's Fatal Tree and Whigs and Hunters in particular
suggest lines of research for students of American criminal
justice, and underscore the value of historical study. By
locating the specific crimes and punishments which the
authors sought to understand in what Thompson modestly
terms the "context" of class struggle and capital
accumulation, each gave his arduous researches a political
significance which the sheer quantity of detail only
threatens to obscure. For it was the painstaking pulling
together of scattered documentation which made possible
the precise class analyses which mark these studies.
In researching the crimes of poaching and wrecking, for
example, the authors went beyond the already difficult task
of identifying the convicted offenders to that of examining
the history of entire communities in which the offenses
were prevalent. Their efforts were rewarded, for these
investigations revealed complex cross-class and regional
alliances which the narrow liberal approach had left
unintelligible (Rogers, 1974). In Cannock Chase, cross-class
support for poachers took the form of providing bail, giving
alibis, taking measures against informers, committing
perjury and aiding in escapes. Linebaugh's study of the
dying appeals of men and women on the gallows likewise
exposed the Tyburn mob as a cross-section of the London
laboring poor, often including the concerned family, friends
and fellow workers of the condemned (Hay et al.,
1976:79-88, 181,198, 200-225).
Valuable as this research proved, each historian also
made thoughtful use of the available statistical record.
Thompson's analysis of the occupations of convicted Blacks
is an impressive example of the way in which an historically
informed statistical technique can altogether transform the
false conclusions of superficial computation, and his
discussion of the limitations of the published record of
threatening letters is a lesson in statistics for historians
(Thompson, 1976:83-94, 115; Hay et al., 1976:261-63).
Much of the material in the two books can be fairly
characterized as history "from below," a perspective which
has yet to fully penetrate American criminal justice studies.
For the most part, we have tended to rely on sociological
metaphors such as "urbanization" or "industrialization" to
frame our understanding of crime, and have failed to locate
the material and political meaning of criminality either
from "above" or "below" in specific historical contexts.
Likewise, we know a fair amount about the history of
selected prisons and police forces, mostly in the northeast,
and almost exclusively from the point of view of the
bureaucrats who ran them and wrote the annual reports
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(Lane, 1974). We know little of what the working class and
oppressed minorities thought about these bulwarks of
justice and even less about the real impact of these
institutions on the working class.
Class analysis, however, is more than seeing from below,
and one of the greatest strengths of these books is their
sensuous description of the men and women who actually
exercised state power. Thompson devoted an entire chapter
of Whigs and Hunters to the high politics of the Black Act;
and each of the studies examined the material and
ideological interests of those who perpetrated both the
crimes and the criminal law. This dialectical movement
back and forth between levels of analysis, in both their
institutional and non-institutional manifestations, is key to
Marxist analysis and is perhaps the single most important
theoretical and methodological lesson of these studies.
Taking stock of the eighteenth century criminal code
from this dialectical perspective, the authors conclude that
the criminal law was more than the weapon of class rule. In
its struggle against the Crown and the aristocracy, the
bourgeoisie had worked to consolidate and legitimize its
gains in the legal arena through the extension of
Parliament's authority and the codification of that power in
the rule of law realized through the coercive force of the
state. The hegemony which the bourgeoisie had achieved by
the eighteenth century was, however, like all forms of class
rule, full of contradictions, and the criminal law was no
exception. The bourgeois code was an essential strategy for
the exploitation and oppression of the laboring poor, but it
was also a strategy which set certain limits to the tactics of
class war. Punishments were to be fixed, not arbitrary, and
trials public. Most importantly, the bourgeoisie suppressed
torture, supported trial by jury and settled formal
procedures for arrest, trial and punishment (Rusche and
Kirchheimer, 1967:73-79).
One need not agree with Thompson's assertion that the
rule of law approaches a universal value in order to
recognize the validity of his and his colleagues' argument
that law was an arena of class struggle as well as class rule.
The poor did have an alternative vision of justice, but it was
a vision shaped in part by the same struggle for protection
against arbitrary power which had marked the bourgeoisie's
fight against the aristocracy. When possible, communities
tried to protect their customary use-rights against capitalist
encroachment by recourse to law; and even the plebeian
victims of the Black Act made unsuccessful appeals to
law-bound justice (Hay et al., 1976:196, 219, 226;
Thompson, 1976:154, 267). Their victories were admit?
tedly small?a jury acquittal here, a technical dismissal
there?but they did help keep open a field of struggle on
which the nineteenth-century working class later fought.
Their struggle, now ours, is not yet won, and the
criminal law is still an important battle front. While
working to unmask the class nature of the law, through
both practical action and historical analysis, we need also
preserve the weak bonds of legalism which yet impede the
bourgeoisie's open violence. Senate Bill 1 is not the Black
Act, and our bourgeoisie is no longer a rising class,
transforming society and itself in the process. A simple
parallel will not suffice.
Albion's Fatal Tree and Whigs and Hunters are
important additions to a class analysis of criminal justice, as
Fall-Winter 1976191
much because of the questions asked as the answers found.
The books' density and academic style will make them
rough going for most readers, especially people who are not
FOOTNOTES
1. For the full text of the Black Act see Appendix I in Whigsand
Hunters. For information on the current status of Senate Bill 1,
contact the National Committee Against Repressive Legislation,
1250 Wilshire Boulevard, Suite 501, Los Angeles, CA 90017, (213)
481-2435. For Jeff Segal's "Stop S-l," a political analysis of the
bill, write to Guardian S-l Pamphlet, 33 West 17th St., New York,
New York 100J1 (404 each).
2. See Marx (1974), Tawney (1954), Schwendinger and
Schwendinger (1976), Lazonick (1974) and Reamy (1970).
3. The American colonialists, to their credit, did not scorn
smuggling. On the day he signed the Declaration of Independence,
John Hancock had 500 indictments for smuggling outstanding
against him in the courts (Rochester, 1949:126).
4. See Rude (1964, 1973), Reamy (1970), Thompson (1971) and
Rose (1961).
5. Some of the earlier work in this field, especially the studies of
rural and urban crowd activity, tended to analyze class conflict
without reference to state relations. In their enthusiasm at
uncovering the positive social and political values expressed by
lower class "social bandits" or agrarian rioters, they occasionally
abandoned political analysis and relied on a purely subjective
distinction between "social" and "non-social" criminality
(Hobsbawm, 1959; Hay et al., 1972; Thompson, 1963,1971).
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George, C. H.
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familiar with English history. They are, however, worth the
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6. From the Restoration until George Ill's death the number of
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Bartollas, C, S. Miller and S. Dinitz Cull, John C. and Richard E. Handy
1976 Juvenile Victimization: The Institutional Paradox. New 1975 Problems of Runaway Youth. Springfield, Illinois: Charles
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Bay ley, David H. Darrow, Clarence

1976 Forces of Order: Police Behavior in Japan and the United 1975 Crime and Criminals. Chicago: Charles H. Kerr (orig.
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Hunt, L,G. and CD. Chambers
Cannavale, F., Jr. and W. Falcon (eds.) 1976 The Heroin Epidemics: A Study of Heroin Use in the U.S.
1976 Witness Cooperation. Massachusetts: D.C. Heath & Co. New York: John Wiley & Sons.

Carey, Mary and George Sherman Johnson, Ray

1976 A Compendium on How to Spot a Con Artist. Springfield, 1975 Too Dangerous To Be At Large. With Mona McCormick.
Illinois: Charles C. Thomas. New York: Quadrangle.
Kelly, William and Nora
Carlson, Rick J.
1976 The Dilemmas of Corrections. Massachusetts: D.C. Heath 1975 Policing in Canada. Toronto: Macmillan Co. of Canada,
Ltd.
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Clifford, William
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1976 Crime Control in Japan. Massachusetts: D.C. Heath & Co.
1883).

Fall-Winter 1976193

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