[Note: This is a long version of the chapter, which may be trimmed
down in the final draft[1]]
England in the 18th
Century[2]
The criminal justice system of England in the 18th century
presents a curious spectacle to an observer more familiar with modern
institutions. The two most striking anomalies are the institutions for
prosecuting offenders and the range of punishments. Prosecution of almost all serious
criminal offenses was private, usually by the victim.[3]
Intermediate punishments for serious offenses were strikingly absent. It is
only a modest exaggeration to say that, in the early years of the century,
English courts imposed only two sentences on convicted felons. Either they
turned them loose or they hanged them.
Parts I and II of this chapter describe the institutions for prosecution and the forms of punishment. In parts III I attempt to make sense of several features of the legal system, arguing that, contrary to the view of many commenters, modern and contemporary, they may have made considerable sense.
Part I: The Private Prosecution of Crime
England in the 18th century had no public officials
corresponding to either police or district attorneys. Constables were unpaid[4]
and played only a minor role in law enforcement. A victim of crime who wanted a
constable to undertake any substantial effort in order to apprehend the
perpetrator was expected to pay the expenses of doing so. Attempts to create
public prosecutors failed in 1855 and again in 1871. When the office of
Director of Public Prosecution was finally established in 1879, its
responsibilities were very much less than those of an American district
attorney, now or then. In 18th century England a system of professional police
and prosecutors, government paid and appointed, was viewed as potentially
tyranical—worse still, French.[5]
Any Englishman could prosecute any crime; in practice, the prosecutor was usually the victim. It was up to him to file charges with a local magistrate, present evidence to the grand jury and, if the grand jury found a true bill, provide evidence for the trial.
Their system for prosecuting crimes was similar to our (and their) system for prosecuting torts. Under both, the victim initiates and controls the process by which the offender is brought to justice. One difference, however, is that if the tort plaintiff prevails, the tortfeasor is required to pay him damages. If the victim of a crime won his case, the criminal was hanged or possibly pardoned. The damage payment in civil law provides the victim with an incentive to sue. What incentives to prosecute were there in 18th century criminal law?
Modern historians were not the first to consider this question. A central concern of 18th century legal writers was the difficulty of inducing people to prosecute. One solution was to establish substantial rewards for the conviction of criminals charged with particularly serious crimes.[6] Rewards not only increased the incentive for victims to prosecute, they also encouraged thieftakers, private investigators who supported themselves by public rewards for convicting thieves, private rewards offered by victims, and rewards for the recovery of stolen property. Jonathan Wild, self appointed Thieftaker General, supported himself for a decade by a combination of revenues from thieftaking, rewards for the recovery of stolen property, and income from the large scale employment of thieves. He was convicted and hanged in 1725 but lived on in fame as the central figure of a book by Defoe and, in the persona of Mr. Peachum, of Gays Beggars Opera.
Rewards provided an incentive for prosecution but led to new difficulties. In some cases it was alleged that the accused had been framed for an offense that had never occurred. Other cases were said to be the result of entrapment; the perpetrators were persuaded to commit the crimes by confederates whose real purpose was to betray them for the reward.[7] Casanova, visiting London from 1763 to 1764, observed window signs advertising the availability of false witness.[8] Jurors knew that witnesses expected to share in the reward from conviction and discounted their testimony accordingly.
Perhaps because of such problems, the system of rewards was reduced but not eliminated in the early 1750's.[9] It was supplemented in 1752 by a provision permitting the court to reimburse prosecutors, especially poor prosecutors, for the expenses of prosecution.[10] While such reimbursement reduced the disincentive to prosecute, it did not eliminate it. Expenses were not always reimbursed or reimbursed in full even when the defendant was convicted, and not all defendants were convicted. Not until 1778 did it became possible for a prosecutor to be reimbursed for an unsuccessful prosecution.
Dissatisfaction with the perceived problems of private prosecution and concern with what was perceived as a high and rising crime rate eventually led to the introduction of paid police forces, first in London in 1829 and later elsewhere in England.[11] The police took over from the private prosecutors much of the cost of locating and convicting criminals. The result, by the end of the century, was a system where most prosecution was nominally private but where the private prosecutor was usually a police officer.
It is easy enough now, it was easy enough then, to see why a system of private prosecution could not work. The puzzle is that it did. Whether it worked better or worse than alternative institutions would have is not clear. But we know that, during the 18th century, quite a lot of English criminals were charged, prosecuted, and convicted. While property may not have been as secure as its owners wished, it was sufficiently secure to permit a flourishing economy and an impressive amount of economic growth. At the end of the century it was the French state, with its modern system of police and prosecutors, that went down in the chaos of the French revolution, while England went on to the glories of empire and industrial revolution.
Part II: Punishment at the Extremes
It is a melancholy truth, that among the variety of actions
which men are daily liable to commit, no less than an hundred and sixty have
been declared by act of parliament to be felonies without benefit of clergy;
or, in other words, to be worthy of instant death. So dreadful a list, instead
of diminishing, increases the number of offenders. The injured, through
compassion, will often forbear to prosecute: juries, through compassion, will
sometimes forget their oaths, and either acquit the guilty or mitigate the
nature of the offense: and judges, through compassion, will respite one half of
the convicts, and recommend them to the royal mercy. Among so many chances of escaping,
the needy or hardened offender overlooks the multitude that suffer; he boldly
engages in some desperate attempt, to relieve his wants or supply his vices;
and, if unexpectedly the hand of justice overtakes him, he deems himself
peculiarly unfortunate, in falling at last a sacrifice to those laws, which
long impunity has taught him to contemn.
(Blackstone, Commentaries,
Book 4 Chapter 1)
Offenses fell into three categories according to their
possible punishments: minor offenses (mostly misdemeanors[12]),
clergyable felonies, and non-clergyable felonies. Minor offenses such as petty
larceny, theft of goods worth less than a shilling, were typically punished
with punishments designed largely to shame the offender, such as public
whipping or exposure in the stocks.[13]
Privilege of Clergy
The distinction between the second and third categories was whether or not offenders could claim benefit of clergy. Benefit of clergy originated as a legal rule permitting clerics charged with capital offenses to have their cases transferred to a church court, which did not impose capital punishment. By the 18th century, the rule had changed in two important ways. The definition of clergy had been broadened to include anyone who could read[14] (and, after 1706, any defendant whether or not he could read) and the church courts had lost their role in dealing with serious crimes.[15] The result in many cases was that a defendant convicted of a capital felony could plead his clergy, be branded on the thumb, and be sent home.
Under a Tudor statute, a defendant who pled his clergy could be imprisoned for up to a year, but that appears to have been done only rarely.[16] Defendants not actually clergymen were supposed to be allowed to plead clergy only once; branding on the thumb may have originated as a device to identify those who had pled clergy once and so could not do so again. But this restriction does not seem to have been enforced very often. Presumably the brand had some stigmatizing effect. That, plus the costs born by the defendant prior to his conviction,[17] seem to have been at some periods the only penalty actually imposed on someone convicted of a clergyable offense.[18]
Clergyable offenses were offenses for which, absent benefit of clergy, the punishment was death. Manslaughter, for example, was a clergyable felony. Its definition included many offenses that we would define as murder. A killing in a tavern brawl, even if done with a deadly weapon, was manslaughter as long as there was no evidence of premeditation or previous enmity. The killer was allowed to plead his clergy, branded on the thumb, and released.[19]
Transportation
Large scale use of transportation as a criminal punishment began about 1663. It was imposed both on defendants convicted of capital non-clergyable felonies and pardoned on condition of transportation and on some defendants convicted of clergyable felonies. A judge who wished to transport such a felon could choose to test the literacy requirement strictly and find that the defendant was not literate and thus not entitled to benefit of clergy or, if the defendant was already branded for a previous offense, the judge could enforce the rule forbidding non-clerics to plead clergy more than once.
Transportation was by private merchants. A merchant who wished to transport a felon was required to pay the sheriff "a price per head that included jail fees, the fees of the clerk of the appropriate court, fees for drawing up the pardon, and so on."[20] After transporting the felon to the New World, the merchant could sell him into indentured servitude for a term depending on his offense. This was a profitable transaction if the felon was young and healthy or had useful skills, but many felons did not bring enough return to pay the merchant's cost. The result was that felons who had been sentenced to transportation but whom nobody was willing to transport accumulated in jails intended as temporary holding places.
Another problem was with the colonies to which the felons were sent; in the 1670's both Virginia and Maryland passed laws prohibiting transportation. Beattie concludes that "transportation to the mainland colonies was being seriously curtailed by the 1670's."[21] While some transportation continued, it seems to have become an uncommon punishment by the end of the seventeenth century.
The second period of transportation began in 1718. This time the government made no attempt to charge merchants for the privilege of transporting convicted felons. Instead the merchants were offered a subsidy of 3 per transportee. On those terms transportation was profitable. The system was continued until the American Revolution removed most of the places to which transportees were being sent from the authority of the crown.[22]
After 1776, a variety of temporary measures were used to deal with prisoners who would otherwise have been transported. Some, confined in hulks moored in the Thames, were used as convict labor for work on improving the river. Others were held in jails. None of these expedients proved satisfactory and they were eventually replaced by transportation to Australia. At about the same time, there were attempts to expand and regularize the use of long-term imprisonment. While initially frustrated by the unwillingness of local governments to build the necessary facilities, such attempts were ultimately successful.
The Range of Punishments
Along with the broadening of the class of defendants permitted benefit of clergy came a narrowing of the range of clergyable offenses. Under the Tudors, a variety of serious offenses[23] were made non-clergyable. Starting in the late seventeenth century, many more were added.[24] The result was a legal system in which the only punishment for some capital offenses was a branded thumb while for many others the only punishment a judge could impose was hanging.
While hanging was, during much of the century, the only punishment that a judge could impose for serious non-clergyable felonies, that did not mean that everyone charged with such a felony or even everyone convicted was actually hanged. Some charges were dismissed by the grand jurys failure to indite.[25] A substantial fraction of defendants were acquitted. Of those convicted, many were convicted of a lesser offense. A jury might find a defendant guilty of an offense that was punishable by whipping or the pillory either in order to keep the offender from pleading his clergy and being released or to prevent him from being convicted of a capital offense and hanged. After 1717, they might find him guilty of a clergyable rather than a non-clergyable felony in order to convert the punishment from hanging to transportation.
In some cases the verdict was clearly an act of "pious perjury" by the jury. The fiction was clear when a jury found a defendant guilty of stealing from a house goods of value 39 shillings, although the goods were obviously worth much more than that; 40 shillings was the value that would make the theft non-clergyable.[26] In other cases the jury failed to include in its verdict features of the crime, such as the fact that the theft was from a house at night or involved breaking and entering, that would have made it non-clergyable. The combined effect of acquittals and convictions for a lesser (non-capital) offense was that, in the sample examined by Beattie,[27] fewer than 40% of those charged with capital property felonies and fewer than 25% of those charged with murder were actually convicted of those offenses.
Conviction did not necessarily result in hanging. It was quite common for a defendant to be convicted and then pardoned. In some cases the reason was that the judge disagreed with the jury's verdict and recommended a pardon in order to avoid the execution of an innocent person. In many other cases, the pardon was the result of petitions by the convicted defendant's relatives, friends, employer, and anyone else willing to petition the crown on his behalf.
Some pardons resulted in the convict going free. Others were a device for substituting a lesser but still serious punishment. The convicted criminal was pardoned conditional on his agreeing to be transported or to enlist in the army or navy. Of those convicted of capital felonies in Beattie's sample, only about 40% were hanged. Most of the rest were either pardoned and released or pardoned and transported or, if there was a war on, enlisted. Multiplying the fraction of those indicted for capital offenses who were convicted of them by the fraction of those convicted who were hanged, in Beatties sample the fraction of defendants charged with a capital felony who were actually hanged was less than 16%.
Despite complications, the overall picture of punishment for serious offenses was fairly simple. For clergyable felonies, the convicted offender was either branded on the thumb and sent home or, especially after 1718, transported. For non-clergyable capital offenses, of which there were a great many, the convicted offender was either pardoned, pardoned and transported, pardoned on condition of enlistment, or hanged. Jails were used to confine defendants awaiting trial or convicts awaiting punishment.[28] Occasionally something went wrong with the system and convicted prisoners started to accumulate in the jail system. Towards the end of the century, there were proposals to expand the use of confinement as a punishment and some efforts begun in that direction.
One puzzle is a system in which the nominal punishment for any serious crime was execution but only a small fraction of those committing such crimes were actually executed. Another and related puzzle is the failure to make much use of imprisonment as an intermediate punishment. Imprisonment was not a novel idea—it existed in statute, had been used to a significant degree in the past, especially by church courts, and was in regular use in France.
Part III: Three Puzzles
While contemporaries, then as now, worried about rising
crime rates, there seems to be little evidence that crime rates were actually
rising. Beattie's figures, based on homicide indictments per capita, suggest
that rural homicide rates fell more than four fold and urban about nine fold
between 1660 and 1800. Combining that information with data for the 19th
century,[29]
it seems likely that much, perhaps most, of the drop in the crime rate between
1660 and 1900 occurred prior to the introduction of paid police.
Such conclusions must be qualified by the fact that the seventeenth and eighteenth century data reflect homicide indictments, not homicides. If the fraction of homicides resulting in indictments felt sharply from 1660 to 1800, that could explain the data without any decrease in the murder rate. But there seems to be no evidence for a decline on that scale. Beattie concludes that while some of the decline in the indictment rate may reflect a change in what events were prosecuted as homicide, at least some is due to a real drop in the murder rate.[30]
In order to understand how and why the system worked as it did, there are at least three puzzles to be solved. The first is why private individuals chose to bear the cost of prosecution even when there was no prospect of a reward. The second is why the legal system used the limited range of punishments it did, with very little use of imprisonment. The third is why the legal system imposed high punishments with low probability.[31] If execution was the correct punishment for anyone who stole goods worth forty shillings or more from a house, why were only a small minority of those caught committing that crime hanged? If it was too high a punishment, why did the legal system not set a lower punishment and actually inflict it?
The Incentive to Prosecute
To answer the first puzzle, it is worth considering two features of the system that have been noted by historians but may not have been properly appreciated. One was the production of deterrence as a private good. The other was the use of compounding, out of court settlement of criminal charges, to reward private prosecutors at the expense of accused criminals.
Deterrence as a Private Good
Consider
the situation from the viewpoint of a potential victim of crime. He would like
potential thieves to believe that if they are caught stealing from him they
will be prosecuted to the full extent of the law. But if he actually caught a
thief, he would be strongly tempted not to file charges. Carrying the case
through as a private prosecutor 
might
cost many times the value of the goods stolen.[32]
The prosecutor not only had to pay legal fees, he also had to pay
transportation and lodging expenses for his witnesses to attend court, often at
a distance of a day's travel or more from their homes. A successful prosecutor
might be reimbursed for expenses by the court but such reimbursement was
unlikely to cover all expenses.[33]
If the criminal had to be located and apprehended before he was prosecuted
there would be additional costs, possibly including the cost of advertising and
paying a reward. Potential victims wished potential criminals to be deterred.
But in order to achieve that result, it had to be in the interest of actual
victims to apprehend and prosecute actual criminals.
One solution was reputation. A merchant who expected to be a frequent target of thefts might prosecute one thief to assure others of his resolve. But most potential victims would be lucky to catch one thief in a lifetime. How could they commit themselves in advance so that potential thieves would know they would be prosecuted?
The solution was to join an association for the prosecution of felons. Most such associations consisted of between twenty and a hundred members, all living in the same general area.[34] Each contributed a fixed payment to a common pool, money that could be used to pay the cost of prosecuting a crime committed against any member. The list of members was published in the local newspaper.
Thousands of prosecution associations were established in the 18th and early 19th century.[35] I suggest that their main function was not insurance but commitment.[36] By joining such an association, a potential victim committed himself to prosecute. The money had already been paid out. That was why the list of members was published in the local newspaper—for the local felons to read.
Not everyone joined such associations; while it is impossible to make any very exact estimates, members and their households were surely a minority, quite possibly a small minority, of the population. There were at least two different reasons not to join, corresponding to two different groups of non-members. The first consisted of potential victims for whom deterrence was already a private good. Wealthy individuals, firms that were either large or particularly subject to theft, were repeat players with an adequate private incentive to follow through on their commitment to prosecute. The second group consisted of those for whom private deterrence was not worth its price: potential victims whose expected costs of crime were low enough to make the value of deterrence less than its cost.[37]
Private deterrence cannot be the full explanation for why offenses were prosecuted, since surviving court records reveal many cases where the prosecutor was neither associated with a prosecution association, wealthy, nor representing a firm. What, in such cases, was the incentive to prosecute?
One answer popular at the time was that prosecutors were motivated by a desire for vengeance.[38] Another possible answer is that prosecution was sometimes a necessary step towards recovering stolen property.[39] Another is that prosecutors began prosecutions in the hope of being paid not to complete them.
In Defense of Compounding Felonies
One way of resolving a civil suit is by an out of court
settlement. The equivalent in a system of privately enforced criminal law is
for the prosecutor to compound the offense, to agree in exchange for
compensation not to press charges. Compounding a misdemeanor was legal in 18th
century England. Magistrates seem to have felt that part of their job was to
encourage private settlements between the offender and the injured party, thus
keeping disputes out of the courts.[40]
A potential prosecutor could agree not to file charges in exchange for compensation, even an apology. But once he had filed his charges, he was subject to a fine if he failed to carry the case through to trial.[41] He could, however, show up and offer a deliberately weak prosecution or fail to show up and hope to be let off the fine. One of the criticisms of the system of private prosecution, especially during the nineteenth century attempts to establish a system of public prosecutors, was that many cases were dropped because of agreements between the prosecutor and the defendant.[42]
What both modern and contemporary commentators seem to have missed is that, however corrupt such arrangements might be from a legal standpoint, they helped solve a fundamental problem of private prosecution. The possibility of compounding provided an incentive to prosecute. It converted a criminal prosecution into something more like a civil suit, where a victim sues in the hope of collecting money damages. And while compounding might save the criminal from the noose, he did not get off scott free. He ended up paying the prosecutor what was in effect a damage payment. As I discuss in the appendix, the same mechanism provided part of the incentive for private prosecution in the form of appeals of felony five centuries earlier.
Viewed from this standpoint, cases that went to trial represent failures, not successes, of the system. As a rule, the loss to the criminal of being hanged or transported was considerably greater than the resulting gain to the prosecutor. Between the two values there was a bargaining range. Sometimes bargaining would break down, perhaps because of differing opinions concerning the probability of conviction or the assets available to the defendant, perhaps due to mutual stubbornness in trying to get the most favorable possible outcome. But under normal circumstances, if my conjecture about how the system worked is correct, some payment in cash or kind, offered by the defendant himself or others on his behalf, would be agreed on.[43] That payment would punish the defendant, reward the prosecutor, and compensate the victim (assuming, as was usually the case, that the victim was the prosecutor).
We do not know how common such arrangements were. One study of eighteenth century cases found that "28 of the 227 prosecutors bound by recognizances to appear at the Essex quarter sessions failed to bring an indictment, but only two had their recognizances estreated."[44] The fact that the penalty for a prosecutor who failed to indict was rarely enforced is consistent with the view that compounding a felony was a practical option for a prosecutor. The small percentage of cases dropped, on the other hand, is evidence against. It does not, however, include either those prosecutors who were bought off before filing charges or those who brought an indictment, perhaps in order to avoid the risk of legal penalties for not doing so, but deliberately lost the case, perhaps by making it clear to the jury that they now considered themselves satisfied or, if the jury convicted, persuaded the judge that the defendant deserved a pardon.
One reason a case might go to trial was a breakdown in bargaining. Another was that the prosecutor's objective was deterrence rather than compensation. Execution, even transportation, would impose a larger cost on most criminals than the largest payment they could make. A prosecutor seeking deterrence would have to balance that benefit against whatever the criminal was willing and able to pay.
One advantage of such institutions, compared to either civil law or criminal fines, was their superior flexibility. The fine was determined not by the court's estimate of what the defendant owed or could pay but by bargaining between the parties most immediately concerned. Defendants might be less eager to appear judgement-proof if the consequence of that status was being hanged.[45]
Controlling undesirable acts by treating them as crimes under a system of private prosecution has another advantage over the alternative approach of treating them as torts. For many offenses, the victim is also the best witness. In a civil system, where legal success produces a damage payment from tortfeasor to victim, the victim has an incentive to perjure himself, a problem familiar enough in modern tort law. A jury, recognizing that incentive, may be sceptical of evidence offered by the plaintiff on his own account or by witnesses provided by the plaintiff.
A victim who hopes to be paid to drop charges before the trial has an incentive to threaten to perjure himself in order to secure a conviction. But unless he has some way of committing himself to carry out such a threat, it will not be believable. [46] Paradoxically, the result may be to make prosecution more profitable than it would be under a civil system. If the case goes to trial the prosecutor gets nothing, so his reservation price, the lowest price at which settlement makes him better off than trial, is lower than under a civil system. But the defendant's reservation price, the highest amount he can pay and still be better off than if the case is tried, will be higher under the criminal system, since the greater credibility of prosecution testimony under such a system makes conviction more likely. And such a system, by reducing the victim's incentive to commit perjury, may do a better job than would a civil system of distinguishing guilty from innocent.
Concerns with profitable perjury and its potential effect on the willingness of juries to believe witnesses are not entirely theoretical, nor are they based only on modern experience with plaintiffs who abandon their wheelchairs immediately after being awarded large damage payments for permanently disabling injuries. The problem was discussed in the 18th century in the context of rewards for the conviction of criminals guilty of certain crimes. It was widely believed both that such rewards led to entrapment and attempts to frame innocent parties and that such concerns were reflected in jury skepticism. Those were among the reasons for the partial abandonment, in the middle of the century, of the system of public rewards.[47]
The conjecture I have offered is relevant not only to why crimes were prosecuted but also to another issue raised in modern discussions of 18th century English law: its relation to the system of class and authority. Some authors view the law as a class neutral instrument, employed by rich and poor alike to protect themselves against the small criminal minority.[48] Others argue that it was primarily a device by which the rich protected themselves from the poor or by which the ruling class established and maintained its legitimacy.[49]
One argument for the latter view is that those with more resources are better able to prosecute crimes committed against themselves. That is surely true to some extent, although writers on the other side of the argument have offered evidence that many private prosecutors were ordinary members of the working class. But what both sides have missed is the tendency of the system to discriminate in favor of poor criminals and against rich ones.
The tactic of starting a prosecution in order to be paid to drop it is familiar in the literature on malicious prosecution.[50] One implication is that the incentive to prosecute criminals is greater the greater their ability to pay to have charges dropped. A victim who catches an obviously penniless thief is probably best off giving him a beating and turning him loose, at most insisting on a public apology. A victim who catches a well dressed thief has more to gain by prosecuting. The eventual out of court settlement leaves the thief better off than if he had been tried and convicted but worse off than if the victim had not bothered to prosecute because it was not worth the cost. Hence private prosecution added to the system an incentive for selective prosecution of those who could pay to avoid the risk of trial.[51]
One issue that a system of private prosecution must deal with is the allocation of property rights to prosecute particular offenses. This is not a problem if the only incentive is deterrence—I am happy to have you bear the cost of prosecuting, and thus deterring, offenders who injure me. But it may be a problem if the incentive for prosecution is the opportunity to be paid to drop charges or if one possible prosecutor is an accessory of the criminal who wishes to control the prosecution in order to make sure that it fails.[52] Rewards avoided this problem, since their allocation was determined by the judge, divided among those he believed to have had had some hand in securing the conviction.
In order to either obtain an out of court settlement or protect a confederate, a prosecutor who drops charges must be able to prevent another prosecutor from taking up the case.[53] A victim who was himself the chief witness or who could control other essential witnesses was in a position to do so. Other potential prosecutors were not. The only way they could provide the offender reasonable security against prosecution was to carry the process far enough forward to make the charges res adjudicata and thus invoke the double jeopardy protection.[54]
That might be risky. Once a trial started, it was controlled by the judge, not the prosecutor. And while the prosecutor could bring witnesses in, he could not keep witnesses out.[55] It is not clear, if two different people wanted to prosecute, to what degree the one who succeeded in being named prosecutor could effectively exclude the other.
If two people did wish to prosecute the same offense, what would happen? One possibility is that the conflict would be resolved by the magistrate. The usual first step of prosecution, filing charges with the magistrate, required his approval, although a prosecutor had the option of instead proceeding directly to the grand jury. Another possibility is that the rule "first in time, first in right" would have applied to such cases, as it seems to have applied to the related case of informers entitled to collect a share of the penalty prescribed under penal statutes.[56]
Punishment and
Punishment Cost
We come next to the puzzle of why the legal system used execution, transportation, and for minor offenses humiliation by whipping or exposure in the stocks, but not, with a few exceptions, imprisonment.
In considering the choice among alternative punishments, a useful concept is punishment inefficiency: the ratio of punishment cost to amount of punishment.[57] A costlessly collected fine or damage payment has an inefficiency of 0; what one person loses another gets. Execution has an inefficiency of about 1; the criminal loses his life and nobody gets one.[58] Imprisonment, as practiced in modern societies, has an inefficiency considerably greater than 1. The criminal loses his liberty, nobody gets it, and the state must pay for the prison.
One explanation for the pattern of criminal punishments in 18th century England is that imprisonment was little used because it was too expensive. If this is correct, the later shift to extensive use of imprisonment can be interpreted as in part a consequence of economic growth. A punishment too costly for a poor country might be appropriate for a rich one.
This conjecture suggests several questions. The first is
whether imprisonment in the 18th century was necessarily more inefficient than
execution; a penal system that was willing to hang sheep stealers had no moral
qualms about setting them to hard labor instead. If the output that could be
extracted from prisoners was more than the cost of guarding and maintaining
them, then imprisonment, although still less efficient than a fine, would be
more efficient than execution.
Apparently it was not. One piece of evidence is the attempt to use prison labor for improvements on the Thames when transportation was interrupted by the American Revolution. The conclusion of modern historians[59] is that the value of the work done was much less than the cost of maintaining the prisoners.
A more interesting attempt occurred on the other side of the channel. French criminals sentenced to the galleys became part of an elaborate system of state run slavery.[60] Until 1748 they were sent to the arsenal at Marsailles, where the galley fleet was based. Those in sufficiently good condition were assigned to galleys as rowers. The rest were used in the arsenal to produce goods for government use under the direction of private employers. The private employers paid a small wage to the galley slaves, presumably for incentive purposes, and received a subsidy from the state. According to Andrews, the system provided the state with goods at below market prices.[61]
During the winter months the galleys were kept at dock. Their oarsmen were rented out, with guards, to employers in Marsailles. Other prisoners ran small businesses in shacks on the dockside, paying off the officers of their galley with a share of the profits.
In 1748, the galleys were abolished; the galley slaves were shifted elsewhere, many to Brest, the chief base of the Atlantic fleet. At Brest, an elaborate prison was constructed for the galley slaves, implementing the latest ideas in 18th century penology. Each slave worked eight days outside of the prison and eight days in. The outside work was mostly heavy labor on behalf of the fleet, but prisoners with useful skills were allowed to use them. The eight days in prison were devoted to a mix of prison maintenance and production of goods and services. The latter were sold to the public in the prison courtyard, which functioned as a sort of bazaar, with sellers of goods and providers of services chained in place.
The interesting question for our purposes is whether this elaborate system of slave labor showed a profit, or at least covered most of its costs. Nobody seems to have worked out the relevant accounts, but there is indirect evidence. While the French state exploited the labor of its galley slaves, it made little attempt to exploit the labor of the much larger number of prisoners not sentenced to the galleys. If the galley slave system had been a clear success, it is hard to believe that the 18th century French state, perennially short of cash, would not have applied a similar approach to the rest of its prison population, or at least to as much of it as was in reasonably good physical condition.
A second piece of evidence comes from the role played by galley slavery in the history of imprisonment.[62] At about the end of the 15th century, Mediterranean states with galley fleets began using condemned prisoners as oarsmen.[63] In some cases, states without galley fleets commuted capital sentences in order to provide rowers for the fleets of their Mediterranean allies. The result was a substantial shift away from capital punishment in favor of one specific form of imprisonment–galley slavery.
That sequence of events suggests that rowing a galley was a job sufficiently well suited to slave labor to convert imprisonment from a punishment less efficient than execution to one more efficient than execution. There are at least two reasons why that might have been the case. One is that galley labor is relatively easy to supervise. Since the oarsmen are all rowing together under the observation of a free officer, any slacking will be immediately obvious and can be immediately punished.[64] The other is that it is difficult for a chained prisoner to escape from a galley at sea.
I conclude that galley slaves, at a time when galleys were still militarily useful, probably produced services worth more than the cost of guarding and maintaining the slaves, but that in other employments France, like England, found that prisoners cost more than they could be made to produce.
If, as these arguments suggest, imprisonment had a positive cost, the next question to ask is how it compared with what the British government was willing to pay for other punishments. We can get some evidence on that from the history of transportation. One reason the 17th century experiment with transportation failed was that the government was unwilling to pay for it. The second experiment, begun in 1718, succeeded in part due to a three pound per convict subsidy. That suggests that the amount the government was willing to pay for transportation reached three pounds per transportee in about 1718.[65]
Three pounds per transportee was a one-time cost, in exchange for which the transportee was removed from England for at least 7, in many cases at least 14, years.[66] I have no figures for the cost of prisons in England save the very high figure for confinement of prisoners in hulks during the American Revolution. But the cost per prisoner at one of the contemporary French prisons was the equivalent of about four pounds sterling (75-79 livres tournois) a year.[67] That suggests that imprisonment cost substantially more than the English state was willing to pay.
One further element in the pattern of punishment in England in the 18th century is implied by the conclusions of Part III above. Punishments for serious crime were not limited to execution and transportation. There was also the possibility of a payment, in cash or kind, worked out between criminal and prosecutor. The punishments provided by law were default outcomes, providing the background against which such bargaining occurred. A fine is an efficient punishment, since what one party loses another gains. The legal punishments of transportation and hanging were less efficient than fines but still more efficient, and less costly to the state, than imprisonment.
And, in addition to those payments, there were payments of a different sort
Pardons
There is a further oddity in the pattern of punishments in
18th century England that I have not yet discussed: the extensive use of
pardons. In Beattie's study of Surrey between 1660 and 1800, he found that only
about 40% of those convicted of capital felonies were actually executed. For
many of the rest, especially after 1718, a pardon was conditional on
transportation. But for some, the pardons were unconditional. Having been
charged, jailed, tried, convicted, and jailed again while waiting execution,
they were released.
Pardons were sometimes used to correct what the judge
regarded as an erroneous verdict. But in most cases, guilt was not the issue.
The pardon was based on character evidence about the defendant, offered either
during the trial or in later petitions. In some cases petitions came from
people who knew the defendant and could provide information on how likely he
was, if pardoned, to reform. In others what qualified the petitioner seems to
have been not his personal knowledge of the defendant but his influence over
the officials who decided which defendants were to receive royal pardons.[68]
There are at least three different functions that the system of pardons may have served. The most obvious is avoiding unnecessary punishment costs. If the experience of being jailed, tried, convicted, and almost hanged is sufficient to discourage this particular defendant from any future crimes, then execution serves no incapacitative function. If the defendant is unlikely to reform in England but has better prospects in the harsher environment of the New World, transportation may be a better punishment than execution. And if most potential criminals who are similar to this defendant can be deterred by something less than a certainty of being executed if convicted, then by pardoning some of them, with or without transportation, the state reduces punishment cost substantially at only a small price in deterrence.[69] Similar arguments can be used to justify judicial discretion in sentencing in a modern court system.
A second function is taking account of the negative externalities imposed by execution. Hanging almost always imposes a large cost on the person most directly affected—that is one of the reasons for hanging people. It may also impose substantial costs on others: friends, relatives, employers, and taxpayers potentially responsible for supporting the criminal's dependants. Those costs serve little deterrent function. If many such people are willing to go to some trouble to testify in favor of the criminal at trial or petition for a pardon, that is evidence that such costs are substantial and so a reason for avoiding them by pardoning the convict.
So far I have assumed that pardons are based on information the court system receives about the prisoner. An alternative way of looking at them is as a good sold on a market. A petition from the convict's employer might provide information about the character or productivity of the convict. A petition from a politically influential nobleman who had never met the convict provided no such information. Yet such a petition would probably have more effect on the outcome of the case than one from the convict's closest friends.
Imagine that you are an ordinary Englishman who wishes to save the life of a friend convicted of a capital felony–say sheep stealing. One way of doing so is to go to some high status person you know, perhaps the local squire, and ask him to intervene on your friend's behalf. If he does so, it will be as part of an exchange of favors. Low status people sometimes have opportunities to benefit high status people, and you have implicitly committed yourself to do so, whether by being suitably deferential to the squire in public or by supporting the parliamentary candidate he recommends.
The local squire has more influence with the authorities than you do, but not enough to save a convict from the gallows. He accordingly writes to a politically influential local peer, requesting him to intervene in behalf of one of the squire's people, a worthy young man led astray by bad companions. Here again, the exchange is not of information but of services. One of the things that makes local peers politically influential is the support of local squires.
The legal system, by considering and acting on such petitions, is implicitly offering the convicted felon a choice between a fine and execution. The fine is paid not by the felon but by his friends[70] and takes the form not of money but of favors. It is paid, possibly through intermediaries, to people who can influence the granting of pardons. To the extent that those paying the fine are in a position to prevent their friends from committing felonies, such a system gives them an incentive to do so. It then functions as a collective punishment, similar to those observed in some primitive legal systems, where fines are paid not by the offender alone but by other members of his kinship group as well.[71]
Pardons procured in this way substitute an efficient
punishment—a fine—for a less efficient punishment—execution.
In doing so, they provide resources to the state and those who control it. Officials
who give out pardons are selling them for non-pecuniary payments. Thus the
legal system, in addition to providing a mechanism to reduce crime, also
increases the ability of the state to maintain its authority. Considered from
the standpoint of public relations, it is an elegant way of doing so. Nobody is
threatened save the guilty convict. The squire is not oppressing his tenants
but doing them a favor at their request. The knowledge that such favors may
occasionally be needed gives everyone in the village an incentive to be polite
to the squire.[72]
In Search of a Pardon: A True Story[73]
James Boswell, best
known for his biography of Samuel Johnson, was a Scottish attorney who
practiced at length in the Scottish courts and more briefly in the English. He
maintained a journal through much of his life, most of which survies. It contains,
among many other things, a first hand account of his attempt to obtain a pardon
for a convicted client. [74]
John Reid, found in
possession of stolen sheep and charged with stealing them, was Boswells first
client. Several months after he was acquitted the Lord Justice-Clerk, head of
the Scottish Supreme Court for criminal matters, delivering a judgement in
another case, mentioned the Reid case as one where an obviously guilty man had
been gotten off by a clever lawyer.
Eight years later,
Reid was again found in possession of stolen sheep, again tried for stealing
them. Boswell again defended him, this time unsuccessfully. Reid was sentenced
to hang. Boswell petitioned the King for a pardon to convert the sentence from
execution to transportation—arguably an appropriate sentence if Reid, as
he claimed, had received the stolen sheep but not himself stolen them.
In seeking support from people who might be able to influence the kings decision, Boswell offered arguments, but not very persuasive ones. With some, such as the Earl of Pembroke, an old friend and a Lord of the Bedchamber to George III, he asked for support as a favor. Colonel Webster, a friend of Boswell and fellow believer in Reids innocence, knew Lord Cornwallis, another intimate of the King, so Boswell got Webster to write Cornwallis. In a letter to Lord Rochford, Secretary of State for the Southern Department and an important figure at court, Boswell appealed to their common concern over the French conquest of Corsica[75]—which, of course, had nothing to do with John Reids guilt or innocence. His planned letter to the Lord Advocate—he ended up speaking to him instead, unsuccesfully—included the phrase I would ask a transportation pardon from him as a favour which I should consider as a serious obligation for life, a clear offer of quid pro quo. Reids father in law had been a tenant of the Earl of Errol, so Boswell wrote the Earl asking his help. The response: I should be very willing to show any favour in my power to a client of yours, but .[76] The petition to the king included the argument that Reid received the sheep but did not steal them, but appealed mostly to the idea that an act of mercy by the king would make him popular with his Scottish subjects.[77]
Despite Boswells effort, Reid was hanged. The reason, by Pembrokes account, was the opposition of the Lord Justice-Clerk. Pembroke and Cornwallis spoke for Reid but could not overcome the strong opposition of the judge. In a later letter, Pembroke wrote: Lord Rochford would have urged for mercy had he been able to do it, but he and the King too indeed think the judge must resign if, after his report, any mitigation of the sentence should take place.[78]
The Market for Mercy
We are left with one final puzzle. Why did the legal system set a high level of punishment and impose it on only a minority of offenders—in most cases a minority of convicted offenders.[79]
One answer is suggested by part of my explanation of pardoning–a market for mercy. The analysis applies beyond the issue of pardons. The probability of favorable outcomes for a defendant depended in large part on his ability to get people to speak in his favor—his employer, his neighbors, his landlord, his victim/prosecutor. The victim had the option of not prosecuting, of accepting instead an apology. He had the option, in the course of the trial, of recommending mercy to judge and jury. So did others who might speak as character witnesses for the defendant. That gave anyone who might some day be accused of a crime an incentive to be on good terms with those he interacted with; their good opinion of him might literally save his life.[80]
So one possible interpretation of the system is that it was designed to give potential defendants an incentive to maintain good relations with those they associated with, especially the status superiors whose word was likely to carry the most weight with judge and jury, and thus to reinforce the existing social structure.
Eighteenth Century Behavioral Economics
There is, however, another possible explanation. From the standpoint of a modern economist, what matters for deterrence is expected punishment, roughly speaking the probability that a crime will result in punishment times amount of punishment. That does not seem to be what contemporary commenters on the legal system had in mind. What mattered was that punishment be striking enough to impress itself on the minds of potential offenders and imposed often enough to keep potential offenders aware of it.[81]
It was sufficient to hang an offender from time to time, preferably a particularly wicked offender. Once enough were hanged to make a suitable public impression, those less deserving of punishment could be let off with transporation or even a free pardon. Hanging ten men might have no more effect on expected punishment than transporting fifty or flogging five hundred, but it made a much more memorable spectacle. Hanging too many might even weaken the effect by reducing the emotional impact of any single execution.
That approach does not fit the conventional economic analysis of law but does make some sense in terms of behavioral economics,[82] the approach that tries to take account of the pattern of imperfect rationality produced by the rules of thumb used to reduce the problem of making sense of the world to a size the individual can deal with. One conclusion from research in behavioral economics is that individuals do a poor job of evaluating low probabilities and overweight striking outcomes, fear airplane crashes more than auto crashes even though the expected mortality per mile is much higher for the latter. One possible explanation of the pattern of punishment in Eighteenth century England is that the men responsible for constructing that system had a good intuitive feel for the irrationality of those it was designed to control.
Part VI: Conclusions
I have attempted to show that the institutions used in 18th
century England to discourage serious crime may have been well adapted both to
that purpose and others. The preference for execution and transportation
reflected the greater cost of imprisonment and was relaxed as the society
became richer. The system of private enforcement worked both because deterrence
could be produced as a private good and because compounding provided an
incentive to prosecutors and a punishment for criminals. The system of severe
punishments threatened but often not imposed provided an incentive to maintain
systems of deference and good reputation, perhaps also a way of scaring
potential criminals out of becoming actual criminals. We do not know enough to
say whether the institutions chosen were the best possible. But they functioned
better than one might expect from the arguments usually offered against them,
then and now.
Appendix: A Thousand Years of Back And Forth
Anglo-Saxon law in the seventh century was a privately prosecuted legal system along lines similar to the legal system of saga period Iceland. The victim or, in the case of a killing, his kinsman sued the offender and, if successful, collected damages. Starting in the late 10th century, that was replaced by a publicly prosecuted system of criminal law in which damages went to the crown. By the 13th century, it had become criminal law in large part privately prosecuted in the form of the appeal of felony. By the end of the 13th century private prosecution in that form was mostly gone–but by the 18th century criminal prosecution was again almost entirely private, usually by the victim, this time in the form of an indictment of felony, a nominally public prosecution. The best explanation I have found for that history is by Daniel Klerman, a legal historian who has written extensively about 13th century legal institutions.[83]
At the beginning of that century there were two different forms of criminal prosecution, presentiment by the jury and appeal by a private party.[84] If the private prosecutor withdrew the prosecution or simply never showed up, the judges could either acquit the defendant or turn the case over to the jury for trial. If they were expected to choose the former alternative, the prosecutor could bargain with the defendant for an out of court settlement, offering to drop the prosecution in eschange for compensation. The more likely the latter alternative, the less willing a defendant would be to settle, hence the weaker the incentive to prosecute.
Early in the century judges almost always set non-prosecuted defendants free, even though that might mean no criminal punishment for someone guilty of a serious crime, possibly because they realized that doing so made settlement more likely and so provided an incentive for private prosecution. By the end of the century judges almost never set non-prosecuted defendants free, possibly because the introduction of a new legal form, trespass, provided a substitute for an appeal, with tort damages as an incentive. By the end of the century the rate of appeal was down to about a fifth its level at the beginning of the century and it never recovered. From the fourteenth century on, most criminal prosecution was by indictment, typically by the presenting jury, the ancestor of the modern grand jury.
Through the end of the thirteenth century, jury trial depended on a largely self-informing trial jury, a group of neighbors assumed to already know the facts of the cases brought before them or able to learn the facts for themselves. That shifted[85] during the fourteenth and fifteenth centuries to something more like the modern system, where trial juries relied on evidence that the parties presented in court. That turn led to a shift back to private prosecution of nominally public criminal cases, there being no adequate body of public officials to do the job, although coroners and, later, Justices of the Peace played some role in the process. Which brings us to the system discussed in this chapter, private prosecution motivated in part, like the appeal of felony five hundred years earlier, by the potential for out of court settlement.
One of the attractive features of Klermans account is that he has data to support the link between out of court settlement and private prosecution. The figure below, from Klerman 2001, graphs, over the course of the thirteenth century, the number of appeals of felony and the percentage of unprosecuted defendants who were acquitted rather than tried. The fit is not perfect,[86] but the relation is reasonably clear. The less willing judges were to acquit a defendant when the prosecutor either withdrew charges or failed to show up, the less willing defendants were to pay prosecutors not to prosecute, hence the fewer private prosecutions.
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sometimes induces
a Jury to discredit the officer, in consequence of
observations made
upon this subject ; the reward is called " Bloodmoney,"
and the officers
are charged with having it always in view,, in consequence of
observations made
upon this subject ; the reward is called " Bloodmoney,"
and the officers are charged with having it always in view,