78 Part II : The Search for Law Section III: Three Dilemmas of Social Organization

ion' prevailed over 'physical strength.' The

opinion was that of the ruling class; the law
was one of their chief ideological instru-
ments.
8
It combined the terror worshipped by
Nourse with the discretion stressed by Paley,
and used both to mould the consciousness by
which the many submitted to the few. More-
over, its effectiveness in doing so depended in
large part on the very weaknesses and incon-
sistencies condemned by reformers and lib-
eral historians. In considering the criminal
law as an ideological system, we must look at
how it combined imagery and force, ideals
and practice, and try to see how it manifested
itself to the mass of unpropertied English-
men. We can distinguish three aspects of the
law as ideology: majesty, justice and mercy.
Understanding them will help us to explain
the divergence between bloody legislation
and declining executions, and the resistance
to reform of any kind.
II
MAJESTY
. . .In the court room the judges' every ac-
tion was governed by the importance of spec-
tacle. Blackstone asserted that 'the novelty
and very parade o f . . . [their] appearance have
no small influence upon the multitude':
9
scar-
let robes lined with ermine and full-bottomed
wigs in the seventeenth-century style, which
evoked scorn from Hogarth but awe from or-
dinary men. The powers of light and darkness
were summoned into the court with the black
cap which was donned to pronounce sentence
of death, and the spotless white gloves worn at
the end of a 'maiden assize'when no prisoners
were to be left for execution.
Within this elaborate ritual of the irratio-
nal, judge and counsel displayed their learn-
ing with an eloquence that often rivalled that
of leading statesmen. There was an acute con-
sciousness that the courts were platforms for
addressing 'the mul t i t ude' . . . .
In its ritual, its judgements and its channel-
ling of emotion the criminal law echoed many
of the most powerful psychic components!
religion. The judge might, as at Chelmsfori
emulate the priest in his role of human ager
helpless but submissive before the demain
of his deity. But the judge could play the rol
of deity as well, both the god of wrath andtl
merciful arbiter of men's fates. For the righ
teous accents of the death sentence were niai
even more impressive by the contrast with til
treatment of the accused up to the moment (1
conviction. The judges' paternal concern fj
their prisoners was remarked upon by foreig
visitors and deepened the analogy with tl
Christian God of justice and mer cy. . . .
JUSTICE
'Justice' was an evocative word in the eigh
teenth century, and with good reason. Th(
constitutional struggles of the seventeentl
had helped to establish the principles of th
rule of law: that offences should be fixed, no
indeterminate; that rules of evidence shouli
be carefully observed; that the law should b
admi ni st ered by a bench that was boti
learned and honest. These achievements wert
essential for the protection of the gentry from
royal greed and royal tyranny, and for the reg-
ulation, in the civil side of the courts, of the,
details of conveyancing, entailing, contract-
ing, devising, suing and releasing. Since the
same judges administered the criminal law at
its highest levels, on the same principles, even
the poorest man was guaranteed justice in the
high courts. Visitors remarked on the extreme
solicitude of judges for the rights of the ac-
cused, a sharp distinction from the usual
practice of continental benches. . . .
Equally important were the strict proce-
dural rules which were enforced in the high
courts and at assizes, especially in capital
cases. Moreover, most penal statutes were in-
terpreted by the judges in an extremely nar-
row and formalistic fashion. In part this was
based on seventeenth -century practice, but as
more capital statutes were passed in the eigh-
teenth century the bench reacted with an in-
creasingly narrow interpretation. Many pros-
ecutions founded on excellent evidence and
80 Part II: The Search for Law Section III: Three Dilemmas of Social Organization
Eighteenth-century 'justice' was not, how-
ever, a nonsense. It remained a powerful and
evocative word, even if it bore a much more
limited meaning than a twentieth-century (or
seventeenth-century) egalitarian would give
it. In a society radically divided between rich
and poor, the powerful and the powerless, the
occasional victory of a cottager in the courts
or the rare spectacle of a titled villain on the
gallows made a sharp impression. Moreover,
it would be wrong to suggest that the law had
to be wholly consistent to persuade men of its
legitimacy. 'Justice,' in the sense of rational,
bureaucratic decisions made in the common
interest, is a peculiarly modern conception. It
was gaining ground in the eighteenth century.
Most reformers worked to bring about such
law, and of all schemes Jeremy Bentham's was
the logical conclusion. Yet his plan for a crimi-
nal code that was precise, consistent and
wholly enforced was alien to the thought of
most eighteenth-century Englishmen. They
tended to think of Justice in personal terms,
and were more struck by understanding of in-
dividual cases than by the delights of abstract
schemes, where authority is embodied in di-
rect personal relationships, men will often ac-
cept power even enormous, despotic power,
when it comes from the 'good King,' the-fa-
ther of his people, who tempers justice with
mercy. A form of this powerful psychic con-
figuration was one of the most distinctive as-
pects of the unref ormed cri mi nal law.
Bentham could not understand it, but it was
the law's greatest strength as an ideological
system, especially among the poor, and in the
countryside.
MERCY
The prerogative of mercy ran throughout
the administration of the criminal law, from
the lowest to the highest level. At the top sat
the high court judges, and their free use of the
royal pardon became a crucial argument in
the arsenal of conservatives opposing reform.
At the lowest Jurisdiction, that of the Justice
of the Peace, the same discretion allowed the
magistrate to make decisions that sometimes
escaped legal categories altogether. Althougl
he frequently made obeisance to the rule
when convicting, as we have seen, he couli
dispense with them when pardoning, and til
absence of a jury made it even easier for him
to do so. Latitude in the direction of mere
caused some critics to complain that man;
justices, partly from laziness or carelessnes
but frequently from benevolent views im-
properly indulged,' judged cases 'partly or en
tirely by their own unauthorized ideas of eq-
uity. This element of discretion impressed
Weber when he examined the office of JP. Ht
compared it to Arabic ' khadi justice'1
formalistic administration of law that was
nevertheless based on ethical or practical
judgements rather than on a fixed, rational
set of rules. It could combine rigid tradition
with 'a sphere of free discretion and grace ol
the ruler.'
11
Thus it allowed the paternalist]!
to compose quarrels, intervene with prosecu-
tors on behalf of culprits, and in the final in-
stance to dismiss a case entirely. The right ol
the pardon was not limited, however, to high
court judges and Justices of the Peace. The
mode of prosecution, the manner of trial and
the treatment of condemned convicts gave
some of the same power to all men of prop-
erty. 'Irrationality, in the sense used by Weber,
and the 'grace of the ruler' which grew from it
pervaded the entire administration of the
l aw. . . .
.. .There is a danger, which perhaps this es-
say has not avoided, of giving the impression
that a system of authority is something rather
than the actions of living men. The invisible
hand of Adam Smith's political economy was
metaphor, shorthand for an effect rather than
a cause; it was a description of recurrent pat-
terns of useful behaviour forged out of the en-
ergy, conflicts and greed of thousands of indi-
viduals in a capitalist market. In a somewhat
similar way, much of the ideological structure
surrounding the criminal law was the product
of countless short-term decisions. It was often
a question of intuition, and of trial and error.
In handling a mob it was useful to appeal to