The difference from the English experience has to be emphasised. InEngland the answer to the question of sovereignty integrated the radicals,if only in a secondary sense, into the existing political culture. In France,on the contrary, the nation had to find a different answer to the samequestion and was forced to sever the bonds which connected it with alegitimising past. The immediate consequence of such a dynamic and evenaggressive notion of national sovereignty was that it left no room for thekind of constitutional compromise which the British constitution offeredas a solution to the question of sovereignty, regardless alike of alltheoretical objections and of the realities of the political process. The idea

This popularity came abruptly to an end on 21 September 1788 whenthe parlement of Paris decreed that the States General should conveneaccording to the forms observed in 1614. The decision came as a shock toa nation full of hope and confidence. When the nation needed it most theopposition parlementaire seemed to have changed sides and joined theranks of privilege. Within weeks the conservative doctrine of sovereigntydisintegrated. The nation redefined itself in the light of this experience asan association of useful men living for, not off, society, as an associationnot of equals but of equally unprivileged men. By January 1789 the AbbeSieyes's provoking questions concerning the Third Estate gave expressionto the new idea of national sovereignty which prepared the ground for theRevolution.26 From it all thought of privilege was banned. Legal titlesturned into civil rights; the appeal to the past was replaced by the appealto the future; and the insistence on order and moral obligation gave wayto the praise of liberty.

Together with the craving for political respectability which burned inmen like Thomas Hardy and Francis Place, this attachment to theestablished constitutional language worked as a means of secondaryintegration. It gave English radicalism a residual affirmative characterwhich in practice made its far-reaching demand for democratic rep-resentation susceptible to being outmanoeuvred by John Bull con-stitutionalism, or to being bought off by piecemeal political reform.

That it was possible to express radical ideas in an accepted constitutional

Such arguments were possible because it was not the share of the Kingor the Lords in the constitution's balance of sovereignty which matteredto the radicals. The issue for them was that a political elite in control ofthe electoral system denied the nation at large its sovereign right to assentto the laws which bound it. They did not see that a thorough reform ofParliament would necessarily have brought into open confrontation thequestion of sovereignty - less because the crown retained so much power,than because a political elite deprived of its means of control might wellhave sought shelter behind the King. Nor could the radicals admit theconstitutional function of corruption, since doing so would have been self-defeating and would have turned the intellectual world of civic humanismupside down. It was unthinkable that there could be virtue in corruption.

Jebb almost got carried away by the logic of his own argument when headded that this applied only to a 'period, when, from the acquiescence ofthe people, it plainly appears to be their will, that the form of government,already established, should continue in existence', but not to 'that solemnhour, when the delegates of a state, chosen according to forms, which notlaw and custom, but necessity and expedience shall prescribe... shall sit inawful judgement upon the traiterous invaders of their rights'.15 Yet Jebbalso demanded that such a constitutional convention should act 'inconjunction with the king, and hereditary nobility', arguing that thepeople, the 'commonalty at large', in their collective capacity were thethird branch of the legislature.16 Another prominent radical, Major JohnCartwright, expressed himself in a similar vein. Like so many others hesaw no contradiction in combining his adherence to the ancientconstitution with a demand for universal suffrage built on a trenchantcriticism of all political privilege.

Late eighteenth-century English radicalism had little or no need to debateover the question of sovereignty. This had been answered very effectively,though not openly, in the Glorious Revolution. For more than a centurythe much vaunted doctrine of the mixed constitution had not onlyconferred the blessings of classical political theory on the Englishconstitutional trinity of King, Lords and Commons, but served as arhetorical smoke-screen produced consciously and unconsciously, toobscure the revolutionary transfer of sovereignty.12 Even so it remainedapparent for everyone who had eyes and wanted to see that in 1688-9,Parliament had established itself as the true sovereign of Britain. Andwithin Parliament the House of Commons had undoubtedly achievedpreponderance. The Crown and the Lords had for the most part acceptedthis arrangement and refrained from bringing to bear the institutionalweight they were accorded in constitutional theory. Instead, they preferredto build up political influence in the lower house through the extensive useof patronage and by manipulating the representative system. Corruptionbecame, in fact, something like a constitutional technique which spared allsides the grim reality of a theoretical debate.

English and French radicalism also articulated these ideas in the samepolitical languages: that of natural-rights philosophy, of civic humanismand of philosophical psychology.10 But they spoke these languages withdistinct accents. This becomes particularly obvious in the case of civichumanism. In England a vigorous participatory political culture hadinteracted and was interacting with the semantics of this political languagesince the seventeenth century, whereas the French version of civichumanism was much less empirical and more Utopian.11 English andFrench radicalism thus drew on quite different dialects of the samepolitical language. And they did so in a context which made this differenceeven more marked. While English radicals could and had to refer to anexisting representative system, French radicals breathed the purer air oftheoretical discourse. When the time for political action had eventuallycome in 1788-9, they faced a much more formidable task. They had todeal with an absolute monarchy which was unable to break out of thegolden aristocratic cage in which it had placed itself and to accept anhistorical compromise. And they had to erect a representative systemwhich satisfied the dictates of reason perfectly.

Very broadly speaking, European radicalism was the political result ofthe new philosophy of the seventeenth and eighteenth centuries, whichhad discovered individual man as the irreducible basic unit of the socialworld. It had applied this principle mercilessly to one field of knowledgeafter the other: to philosophy and psychology, to religion and ethics, tosocial philosophy and economics. The defenders of the established orderand of the traditional ways of thinking were driven mad by the dynamicsof this methodology, which sacrificed accumulated human wisdom andcenturies of historical experience with a stroke of the often polemical pen.Within two or three generations the new concept of individualism hadexploded such time-honoured notions as the ideology of order, with itsinsistence on a divinely ordained social hierarchy, and the moral obligationof a Christian to perform the duties of the social station assigned to him.By the middle of the eighteenth-century the once noble edifice oftraditional knowledge was so derelict that it had become uninhabitable forall but the most immune to the spirit of the times.

It might be argued, of course, that the rhetoricalone was largely sufficient and that very few actual hangingswere necessary in order to achieve this effect; but the completeabsence of hangings for property crime across long periods inmany counties in western Wales, Highland Scotland and the farwest and north-west of England, which were by no meansespecially orderly places, suggests that in significant parts ofBritain the penal system functioned equally effectively in its keyeveryday function, the protection of property, without the use ofthe death penalty. This is not to say that capital punishment wasnot vitally important to the governing elite when they facedextreme threats to the social and political order, such as theGordon riots, the extensive food riots of 1800—1 or the Jacobiterisings. Moreover, as Hay has shown, the gallows could also beused strategically in the middle of a period of rioting to deterfurther disturbances by threatening to hang those already

The precise vectors through which this occurred are difficult tounravel and cannot be investigated here, but different levelsof social inequality may well have been one link. As LeighShaw-Taylor’s recent work has shown, mapping the ratio ofmale farmworkers to farmers (a rough proxy for levels of ruralsocial inequality) produces a not dissimilar pattern to theexecution rates found in the Map, the ratios being lowest inwestern and northern England and highest in the south-east.126Moreover, as Sharon Howard has pointed out, ratios of labourersto farmers in most of Wales were also very much lower than inarable England, where communities were more likely to bedivided between small groups of well-off farmers and manylandless labourers, for whom, as Crabbe succinctly put it, ‘thewealth around them makes them doubly poor’.127Commentators frequently remarked on the relative absence ofinequality on the periphery. As a witness before the selectcommittee on criminal commitments of 1826 pointed out, ‘inCumberland both the farmers and the agricultural labourersare content with mean and scanty food’. The farmers’standards of living excited ‘no envy or discontent’ among thelabourers ‘because in point of fact it is very little better or more

Did relatively low levels of social inequality mean that pastoralcommunities on the periphery were less willing to prosecute inthe major courts? The survival and growth of many informalsanctioning systems in Wales in this period certainly indicatethat this is a possibility. Moreover, if Douglas Hay is correct insuggesting that ‘the violence of the law, measured by prosecutionsand punishments, was largely determined by the need to containthe effects, direct and indirect, of substantial social inequality’,then the propensity to prosecute and the willingness to hang maywell have been lower in areas like Wales, Cumberland andCornwall than they were in the south and east of Englandbecause levels of inequality were also much smaller.1

Twoaspects of the administration of the Welsh Great Sessionsprobably made it easier for the local population to influence thejudges. First, the Welsh judges themselves were much lesser figuresthan their equivalents in England. English judges were full-time,and when not on circuit they sat in the prestigious Westminstercourts. Welsh judges were part-timers. They had an ‘amphibiousprofessional existence . . . being judges for six weeks and practisingor retired barristers’ for the rest of the year.109 They were

Similar evidence about potent local opposition to executionsfor burglary can be seen in 1813 when William Morgan was left tohang at Cardiff against the explicit recommendation of the jury.The ‘public mind’ was described as having ‘very hostile feelings’about ‘a man suffering death’ for this offence, and, ‘strengthenedby the decided voice of his own neighbourhood for saving his life’,a large-scale petition by Cardiff ’s inhabitants was eventuallysuccessful. Even though the judges ‘thought it necessary . . . to make an example’, the Glamorgan jurors and petitioners won theday, their key counter-arguments being that the condemned manhimself was a ‘victim’ of this policy, and thatthe execution of the sentence would undoubtedly operate unfavourably inthis country by preventing prosecutions in future . . . and the frequency ofsuch offences is certainly likely to be increased . . . by resorting to suchextremes as will deter humane sufferers from arraigning futureoffenders.8

Apart from one hanging in 1742, which occurred immediatelyafter the passing in 1741 of the Act that made sheep theft a capitaloffence, no other Cornish sheep-stealer had been hanged underthat Act by 1767, and none would be until the crackdown of thelater 1780s.82 Although sheep-farming was an important partof the local economy, many influential Cornish inhabitantsclearly disagreed with the use of capital punishment against thiscrime.83 When a Cornish sheep-stealer was again left to hang bythe assize judge in 1786, ‘the general wishes of his neighbourhoodto prevent his execution’ were vehemently expressed.84 Innormal times (though not in the crisis of the 1780s) localopposition effectively turned the Act of 1741 into a dead letter,as it did in Cumberland, and in most of the sheep-rearing countiesof Wales, where there were no hangings of sheep thieves in theAct’s first forty years.85 In relation to the Bloody Code more

Just as high indictment rates could lead to harsherpardoning policies, as they did in the 1780s, so low indictmentrates in particular regions on the periphery tended to reduce thedesire to hang property offenders. This mechanism, combinedwith the ways in which jurors on the periphery systematicallyreduced the proportion of offenders who were fully capitallyconvicted, seems to have created a scarcity of executions forproperty crime that sensitized the public in a unique way. If weturn to more qualitative sources, to the fragmentary insightscontained in newspapers, government correspondence andmore particularly in the pardoning archives, it becomes clearthat communities on the periphery (and key officials such as thesheriffs) were particularly sensitive to, and often willing tochallenge directly, the use of capital punishment against routineproperty offenders.

Pardoning rates for burglary, for example, were 46 per cent inLondon, 64 around London, 78 in the rural counties and 88 percent on the periphery. These results suggest that differences inoverall pardoning rates were not created primarily by the differentmixes of capital crimes in different regions but by real differencesin pardoning policies between the centre and the periphery. Sincethe process of granting a pardon often implied, as Cesare Beccariapointed out, a ‘tacit mark of disapproval’ towards the capitalcode itself, these differential pardoning rates may well beevidence of a much more widespread dislike of the capital codeon the periphery.7

‘The independence of juries should not be overestimated’,Gatrell has argued, but in areas such as Wales and Cornwallhistorians may well have underestimated it.65 Grand and pettyjuries on the periphery deliberately ensured that a very muchsmaller proportion of indictments for capital property crimesresulted in a hanging. ‘The jury’, E. P. Thompson pointed out,‘attends in judgement, not only on the accused, but also upon thejustice and humanity of the Law’.66 The jurors of the peripheryclearly found the law wanting in both respects. Moreover, sinceprosecutors were drawn from much the same social groupsas jurors, historians have suggested that they would haveresembled jurors in their outlook.67 If this was the case,prosecutors on the periphery would almost certainly have beenmore reluctant to prosecute, and more reluctant to use capitalcharges, which may help to explain why indictment rates forcapital property crimes were much lower.68 It is therefore likelythat the pattern of differential erosion in conviction rates forcapital property offences, which we can definitely trace acrossjury decision-making, may well have begun much earlier inthe prosecution process.6

The western and northern counties of England and Walesshowed little reluctance to send murderers to the gallows, andas a result hangings for murder played a larger role inexecutions on the periphery than they did at the centre. InGlamorgan between 1750 and 1775 all of the five executionswere for murder. In Monmouthshire the figure was 80 per cent;in Westmorland, Montgomeryshire and Caernarfonshire 50 percent; in Cornwall 42 per cent. The contrast with counties nearLondon was stark. In Essex only 9 per cent of hangings were formurder, in London only 12 per cent. In England and Wales as awhole, 19 per cent of hangings were for murder. On the HomeCircuit the figure was 17 per cent; on the Western Circuit 25; onthe Northern Circuit 35; in Wales 41; in Scotland 53.32 At thecentre hangings were clearly about preserving property, but as wemove away from London the gallows ceased to be dominated bythose executed for property crimes and became increasingly amatter of an eye for an eye.33 If you killed someone and werefound guilty of murder rather than manslaughter, you wouldalmost certainly hang in later eighteenth-century Britain. The

The Map makes it clear that thisimmense contrast is in no way untypical. In London about 590

Focusing on the period 1750—75 is also useful for other reasons.It was a period of relative stability for the capital code. The useof hanging altered fundamentally between the late sixteenth andthe early eighteenth centuries. According to Philip Jenkins’sestimates, national hanging rates peaked at between 25 and 30per 100,000 population per year in the crisis period around1600.17 However, they then rapidly declined to about 10 per100,000 in the 1630s, to under 5 by 1700, and to 1.3 by 1750,after which they remained very stable until the late 1770s.18 By1750 capital punishment was playing a completely different rolefrom the one it had performed in 1600. As David Garland haspointed out, the English state was rapidly moving on from its‘early modern stage’, in which the state frequently used ritualsof execution to assert its claims to authority and to impress thepopulace.19 By 1750 it had embraced instead a range of penalpolicy options within which the death penalty was no longer ‘anunquestionable expression of sovereign power but a policytool like any other’.20 Following its introduction as a formalsentencing option in 1718, transportation had quickly come to

A wealth of evidence showing that the criminal lawreplicates and reinforces other fields of social force informs a very large body ofliterature in the social sciences. The fact that such bias may not be the result ofconscious intent, that it can arise from deeply held beliefs by those with power todecide who is trustworthy and who is dangerous, is also clear. But whetherconsciously articulated, hypocritically concealed, or so fundamental to the actors'view of the world that they are largely unexamined, such beliefs and their outcomesare uncomfortable facts. They are particularly uncomfortable for those who want usto believe that the application of the death penalty in any period has beendetermined solely by legitimate considerations, duly recognized, impartially andequitably enforced, and exemplifying the rule of law.

The exercise of influence, particularly in a patronage relationship, is always adelicate game, with an understood etiquette, even when not complicated by theconstitutional issues at the heart of pardoning. At the highest level, when a duke ora countess intervened, the significance of their intervention was plain (and theyoften also explicitly deferred to the constitutional proprieties.) Farther down it getsmurkier. People sufficiently well connected 'knew' other such people: knew theirfamily backgrounds, their other patronage connections, and hence the weight oftheir influence. But such 'connection' often would not be expressed incorrespondence; it would be known, its significance understood. Whencontemporaries did not know what they ought to have known, because they werenot well enough connected, they were not very successful at the patronage game.Very pressing patronage appeals in any correspondence in the century tend to bewritten by people who did not understand or play the game very well, or had littleinfluence. And you may not find any evidence at all in the cases where a powerfulbut unstated 'connection' was known to all the players, and very often passedthrough intermediaries known to represent them, or by word of mouth.

For the reasons given, for the most part informal influence in the disposition of aparticular case is lost to us. Yet contemporaries must have been aware that directlyand personally influencing what Beattie called 'administrative' pardons, thosedecided by the judge himself immediately after trial at the assizes, or as they wereplanned by the recorder before he made his report to council, would be the mosteffective approach, because there would be no need, as there was in the case of'petition' pardons, to overcome a previous adverse decision. This was even morethe case in those periods when policy decisions tried to limit the extent ofpetitioning.

All scholars working on the pardon system should sense that they know only part ofwhat went on, on two grounds. One is that we will never know much about theconduits of influence that have left no documentary evidence." Were theyimportant? We know that at the assizes, persuasion and pressure was brought to

But the real question is who had influence over the pardoning process, one in whichI suggested that the chain of connection - as it moved upward from middling sort togentry to aristocracy - greatly increased in effectiveness. King's book addressesthis question more directly, and includes an analysis that sounds rather like my ownconclusions in 1975.29 He concedes that the bottom 50% of the population wereprobably absent from the petitioning process, as they had no influence, aconfirmation of the importance of having what I called 'respectable' support." Heagrees with my argument in 1975 that aristocratic influence, although exercised in a'small number' of cases (the number is not given), was particularly effective, andcould override the objections of a judge to extending a pardon. He is a bit opaqueon the relative roles of the very different groups below the aristocracy, the gentryand 'middling sort'. 31 There were middling petitioners in over 50% of his cases inthese two years, but it appears on close reading of King's text that in almost half ofthose cases there were also petitioners of a higher social class (presumably gentryor higher, although King does not identify them, nor give a more precisequantitative breakdown). It would appear, then, that 'middling' petitioners appearedalone in a little more than one-quarter of petitions. Their success rate, King tells us,

Hence the rather strangulated or opaque language of some judges' reports. 28 Butmore important, it meant that in order not to box the king in (to use Beattie'sphrase), when asked for a report a judge felt obliged to offer a selection ofacceptable excuses for a pardon - youth, good character, an offence not aggravatedby violence - those that Beattie, King (and Hay) agree informed their day to daydecisions in 'administrative' pardons immediately after trial. Hence the irony ofKing's counting: he is counting the incidence of claims of youth and other 'factors'in precisely those cases (after petition) where such factors were originally foundinsufficient by the judges. A young man is condemned to death and left forexecution. He is subsequently pardoned, after petition, on the grounds of his youth.But he has not grown younger in the meantime. The determining 'factor' in thiscase is not his youth, but the fact that sufficiently powerful interest has been exertedon his behalf. Yet that outside influence is not counted as a 'factor'; his youth is.

But the real problem is that counting 'factors' in this way, notably in judges'reports, is to misconceive the nature and purpose of a judge's report to the king.Why, for example, is the language of judges' reports sometimes 'opaque', 'cryptic','ambivalent', and 'defensive in tone'?23 These judicial reactions reflect the tensionswithin the pardoning process. The royal pardon was a delicate constitutional nexusbetween reasons of law and reasons of state, the latter including issues of 'interest'and 'connection' as well as general public policy. The King and his advisors, andthe royal judges, were equal players, often fully agreed, but sometimes at odds. Butwhether in agreement or conflict, the constitutional and political significance ofpardoning meant that the language in judges' reports often had to be opaque, and,more important, often directly misleading - not least to historians taking it at facevalue.

The newly-minted Chief Justice, Sir Dudley Ryder, faithfully did so. Langbeinquoted Ryder's comments on the 'factors' in several cases of highway robbers andhorse thieves on that circuit, noting Ryder's refusal to listen to appeals from 'elite'petitioners.18 What Langbein did not quote was Ryder's further comment on thecases, justifying his decisions by noting that highway robberies were 'particularlyincluded in His Majesty's late commands to his judges' and that 'Another principalreason with me was the King's late injunction to his judges not to let importunityprevail'. 9 Government had been resisting judicial mercy for several years, andsome judges longer on the bench than Ryder did not like the new policy. Sir JohnWilles, Chief Justice of Common Pleas since 1737, expressed annoyance in 1750when asked to report on highway robbers to whom he had already givenadministrative reprieves: 'I am sorry to find ... that the same credit is not given tothe present judges, as hath been given to their predecessors for many years last past.However, it is my duty to submit, and to obey the commands of the LordsJustices'.2

What I wrote in 1975 provoked dissent. Evidence adduced against it in 1983included the argument that Chief Justice Ryder's circuit notes in 1754 and 1755(which I had cited on a different point) showed that 'principled' judges tried 'totake into account factors that ethical sentencing officers still consult'.' Peter King'sthen unpublished 1981 analysis of pardons from the 1780s was used to show that'respectable' background or support ranked low on the scale of deciding factors thatinfluenced judges who saved the condemned from the gallows; that most petitionerswere 'middling men'; and that hence my emphasis on elite influence was deeplymisleading.I had focused on such influence because my argument was an explanation of gentryand aristocratic reluctance to give up the pardon, as Beccarian theory advised theyshould. There was also a fundamental misunderstanding of my point, whichrumbled on in subsequent writing. My remark that the claims of class saved moreconvicts from hanging than did claims of poverty and distress aroused particularannoyance. I did not, of course, mean that youth, previous good character, lack ofviolence, and the other 'factors' later counted by King were not important in suchdecisions. I had read hundreds of judges' reports, and knew how important theywere in hanging decisions: in my dissertation I noted the salience of these factors,and that the judges 'undoubtedly gave great weight to all these considerations'. Butit was true that 'respectable' family background was mentioned more often thanpoverty or distress, and that was an interesting comment on contemporarysensibilities.

In 'Property, Authority and the Criminal Law' I argued that the eighteenth-centurycriminal law was not the illogical, capricious, inefficient, and messy bricolageportrayed by the parliamentary reformers of the early nineteenth century, and byhistorians like Radzinowicz. Rather, it served the interests of the governors ofEngland well, even if its enforcement (at historically low levels of prosecution) did

Most sentencing and pardoning decisions were almost certainly based on universal and widely agreed criteria rather than on 'class favouritism and games of influence '.130 In order to maintain their hegemony the ruling group often had to accept the constraints imposed by legal principles and traditions. The law cannot be treated as a separate, disembodied entity, and any adequate understanding of eighteenth-century society must involve an analysis of the changing relationship between legal institutions and general social structures, but the belief systems embedded within the rules and administrative practices of the law were not easily pushed aside by pressure groups, whatever their economic or social status. The law was ideologically useful to the gentry. It could be applied in their interests and was so applied in particular instances, but more complex motivations, traditions and conflicts lie behind the patterns observed in this paper. The law was notjust a tool or a channel for the interests of particular social groups. It was also an active force whose traditions helped to define the structure of social and economic relations as well as being influenced and changed by them.1

The power of juries and the nature of judge/jury relationships in the eighteenth century have yet to be fully analysed, but it is clear thatjuries were often able to put their own notions ofjustice into practice. Their extensive use of partial verdicts, for example, gave them effective sentencing powers in burglary, house-breaking and aggravated larceny cases and they used those powers to systematically favour certain age ranges.'03 In exercising these powers they showed considerable independence frorn judicial influence.'04 When an Old Bailey clerk was asked, in I8I9, 'do the juries often

This analysis of the main decision-makers within the criminal law and the basis on which their decisions were made raises a number of questions. The wide discretionary powers held by prosecutors and petty juries in the legal process, the fact that both these groups were drawn predominantly from either the middling group or below, and the importance of the middling sort in the pardoning process or as character witnesses in court, leads us away from any view of the law that stresses its role as the instrument of a tiny elite. Useful though this perspective may be in understanding particular situations, such as the manipulation of sentencing policy during periods of riot,96 the law was more extensive in its influence and more important to a wide variety of social groups than such a view would imply. If the law was a tool -- and this analogy involves a number of assumptions that are difficult to substantiate - then it was one that soiled or graced the hands of many different kinds of workmen.

Paley's insistence that the prerogative of pardon 'ought to be regarded, not as a favour to be yielded to solicitation. . or made subservient to the conciliating or gratifying of political attachments but as a judicial act', depending on nothing but 'the quality and circumstances of the case', may have been a direct attack on aristocratic connexions. When they dealt with less exalted gentry and middling group petitions, judges probably took a similar attitude. Judge Harding's remarks in I790 certainly had much in common with Paley's conclusion that 'the admission of extrin-sic or oblique '92 considerations, in dispensing the power of pardon

The small number of petitioning processes that showed signs of aristocratic connexions fit in well with Hay's analysis of the usefulness of the pardoning system to the aristocracy.88 Although prisoners with aristocratic support were only slightly more successful in gaining positive recommendations from the judges, they had a much greater chance of overriding him when he did not report in their favour.

Positive references to the respectability of the prisoner or his parents can be found in only 5 per cent ofjudges' reports and Io per cent of petitions. T hey were usually brief, noting 'his respectable mother's distress', or 'his parents being respectable', but the report on John Gill's case in I790 was more expansive. It referred to 'his unfortunate relatives who are persons of worth

A more complex set of criteria relate to the wealth or respectability of the prisoner or his parents. T here is considerable evidence in the judges' reports that they were inclined to come down very hard on prisoners who were relatively well off and could not therefore plead poverty at the time of the crime. T he report on William Rose in I784 indicates that his better economic position (Rose was a farmer leasing I00 acres) was the main reason he was left to hang,76 and in I764 the judge refused to recommend T homas Heathwood because 'he having no extenuating plea of necessity. It was more of consequence ... that one man in good circumstances should suffer than twenty miserable wretches. '77 A I790 report concluded 'it was a great aggravation of the offence that he was in a situation in life that should have placed him above the temptation of committing such a felony. I consider him a proper person to be punished with exemplary severity. '78 T he judges may well have implicitly assumed that most property crimes were committed out of necessity but, whatever their assumptions, they were prepared to punish individuals very severely if 'the common excuse for larceny; poverty and distress' was obviously not applicable.7

Future employment prospects and potential reformability were also important, particularly in cases where the prisoner was young. In I768 the apprentice William Ludlow was described as 'sent to transportation solely with a view to his reformation', and it was suggested that 'if the Foundling Hospital will find him another master in some remote part of the kingdom, some hope may be entertained of his reformation '.59 In i 79oJohn Brown was granted a remission of sentence to three years hard labour, under the strict regime of Wymondham Bridewell, because 'the prisoner being a young man may under such superintendence be reformed '.6 Sympathy for the young was mentioned injudges' positive recommendations more frequently than any other factor except good character (see Table 3). In I 790, for example, a prisoner was recommended because he 'appeared to be very young, and there was room to believe this was his first offence ',61 and many reports included such phrases as 'on account of his youth' or 'being a young man'.

The criteria most frequently referred to in these documents are those which relate to the good character and previous conduct of the accused (see T able 3). Adjectives such as 'honest', 'industrious', 'sober', 'punctual' and 'trust- worthy' appear regularly in petitions and favourable judge's reports. During property crime trials and subsequent pardoning decisions, the accused's good character was a vital issue.54 A local J.P. writing to the Essex quarter session in I8oo, for example, recommended James Perry for lenient treatment 'as a man of remarkable good character, with a large family entirely dependent on him'.55 Although character references were given by J.P.s and other men of relatively high social standing, the great majority of character witnesses appear to have been drawn from the middling sort or from the poorer but respectable sections of the local community. T he judges rarely give precise information on the social status of these witnesses, but they were usually the established neighbours of the accused and their opinion of him could be crucial.56 The evidence of employers, military officers and apprentice's rnasters was also important in a number of cases, and past military service was often pleaded as a mitigating factor.5

Labouring prosecutors may well have been more constrained than wealthier groups by the costs of prosecution, the relative attractiveness of compensation or, on a few occasions, by the problems that might ensue if an indictment was brought against someone from a household of higher status. However, their widespread use of the quarter sessions in assault disputes and property-crime cases implies at the very least a basic understanding of legal institutions and a pragmatic acceptance of their usefulness. It may also indicate a much deeper penetration of positive attitudes to the criminal law. Philips concluded on the basis of similar evidence that the nineteenth-century working class 'accepted important areas of the legitimacy of the criminal law'.25 Although legitimacy is hard to define in this context, the availability of the courts, the financial help they offered and their obvious value to poorer victims can only have increased the number of situations in which the labouring poor saw the law as useful and advantageous rather than as unjust or debilitating. Beneath this superficial level the frames of reference used by the eighteenth-century poor in approaching the law remain obscure but if, as seems likely, Beattie is right that there was a general 'trust for the broad principles of the law'26 then the availability of the courts was one of the factors that created and reinforced that trust amongst labouring men.

Within certain constraints, the law in relation to property crime was a resource available to and used by almost every layer in eighteenth-century society. All social groups could not use it with equal freedom, but it is dangerous to concentrate solely on its role as an instrument of the larger property owners. If, as Hay pointed out in the context of the power of the gentry and aristocracy, 'discretion allowed a prosecutor to terrorise the petty thief and then command his gratitude'22 similar powers were also enjoyed in a fairly broad spectrum of situations by the labourers, artisans and middling men who made these choices far more freqently than the elite.

Although help may occasionally have been given by employers or better-off neighbours, it was the courts themselves that increasingly took on the task of helping poorer prosecutors in property-crime cases. Victims had few significant technical barriers to overcome, and lack of literacy does not appear to have created difficulties for those who used the courts. A third of the prosecutors at the Essex quarter sessions 1748-I800 could not sign their names, and more than 8o per cent of labourers put only a mark on their depositions.2

Since labourers and their households were not vulnerable to the loss of commercial goods or to the pilfering of servants, and possessed fewer domestic objects likely to attract a thief's attentions, their level of involvement is quite remarkable. In Essex more than a fifth of felony prosecutors at the quarter sessions were labourers or husbandmen and similar proportions have been observed in other counties.15 They may well have been nearly as numerous among felony prosecutors as they were among the victims of theft as a whole. Labourers were even more active in assault prosecutions, reflecting perhaps their higher vulnerability to this kind of offence or dispute. As the court never paid prosecutors' expenses in assault cases this indicates a particularly open attitude to the use of the law.

The key decision-maker in the eighteenth-century criminal law was the victim himself. The vast majority of property-crime prosecutions were brought by the victim and a wide range of decisions was open to him. He could write off the property lost or begin to pursue enquiries. He could attempt only a minimal search for the offender or be more vigorous and involve others in the pursuit. If the accused was tracked down, the potential prosecutor could compound the offence, activate informal sanctions within his own community or take the offender before a magistrate. At the committal stage he could influence the outcome in favour of a compromise or push for the accused to be tried summarily, put into the armed forces or held awaiting trial.5 During the trial he could limit the sentencing alternatives available to the court by selecting the kind of indictment to be brought and might even engineer a discharge for the prisoner by weak presentation of the evidence or by failing to appear.6 After proving the facts he could indicate to the court that he favoured a partial verdict or a lenient punishment, and after sentence was passed he might organize or support a petition for pardon.

. Although the elite might, on certain occasions, make the courts 'a selective instrument of class justice ',3 this was not necessarily the main function of the laws against property theft nor can it be assumed that it was the central motive force which governed the ways they were administered. In the chain of decisions that brought a property offender to and through the court a wide variety of participants could in- fluence the outcome of the case. The prosecutor, the witnesses, the accused's neighbours, the parish officials, the magistrates as committing officers or as summary court, the grand jury, the petty jury, the trial judges or quarter sessions bench, the department of the secretary of state and the king could all be involved at various points. It was therefore possible for individuals and groups of widely differing social and economic status to modify or choose not to modify the severity of the law in line with their needs, beliefs and ideas of justice. These opportunities were not always equally distributed, but wide dis- cretionary powers were available to middling men and in a more limited way to the labouring poor.

In this paper I have been maintaining two themes about the ad- ministration of the criminal law in the eighteenth century. First, most of the discretion was exercised by people not fairly to be described as the ruling class, especially the prosecutors and the jurors. Secondly, the discretion that characterized this system was not arbitrary and self-interested, but rather turned on the good-faith consideration of factors with which ethical decision-makers ought to have been con- cerned. The historian does not need a conspiracy theory to explain the discretion, and the discretion does not fit the theory. I concede fully that when men of the social 61ite came into contact with the criminal justice system in any capacity, they were treated with special courtesy and regard, just as they were elsewhere in this stratified society. To seize upon that as the raison d'etre of the criminal justice system is, however, to mistake the barnacles

A staple of Marxist argumentation for dealing with contrary evi- dence is what I call the legitimation trick. Evidence that cuts against the thesis is dismissed as part of a sub-plot to make the conspiracy more palatable to its victims, to legitimate it. The Hay essay contains some splendid examples. Hay notices the pervasive legalism of Eng- lish criminal procedure, including "the extreme solicitude of judges for the rights of the accused, [in which contemporary visitors from Europe saw such] a sharp distinction from the usual practice of con- tinental benches".58 Hay also mentions the tradition of strict con- struction against penal statutes and the recurrent quashing of strong prosecution cases for technical flaws. But Hay undertakes to reconcile this attention to safeguard with his thesis by arguing: "When the ruling class acquitted men on technicalities they helped instil a belief in the disembodied justice of the law in the minds of all who watched. In short, its very inefficiency, its absurd formalism, was part of its strength as ideo

40 The limits on judicial influence must, however, be understood. Since there was as yet virtually no diversion of felony cases away from trial by jury, all those open-and-shut cases went to jury trial that would today be processed in short-form procedures such as plea bar- gaining or trial "by the bench" (that is, by judges sitting without juries).41 Accordingly, most cases that went to jury trial in the eight- eenth century involved evidence so overwhelming that conviction was a certainty, there was no room for influence. Further, when jurors deferred to judges, it was because jurors understood that judges spoke from wisdom and experience about matters of legal principle. If the jurors had suspected the judges of abusing their authority in order to promote elite interests, jurors would not have been so ready to follow the judges' lead. The history of bitter judge/jury antagonism in the seditious libel cases later in the century should stand as warning enough against the notion that judges could command jury verdicts by fiat.42 When the sources for the Old Bailey cases permit us to see what the judges were saying to the juries, it seems largely dictated by the state of the facts or the law.

. The property crimes that were of major conse- quence in the workload of eighteenth-century criminal courts - in particular the theft of livestock, shop goods, and personal and house- hold belongings - were those about whose blameworthiness there was a moral consensus that knew no class lines. That is why men of the non-61ite could predominate (as prosecutors and jurors) in con- victing persons who committed property crim

I find Hay's account of the jury baffling. He wants to make the jurors co-conspirators. He says: "All men of property knew that judges, justices [of the peace] and juries had to be drawn from their own ranks".32 This is not a considered statement, because it assimi- lates men of great wealth and station to the same "ranks" as those who satisfied the ten-pound-a-year minimum juror qualification.3 In the Reverend Martin Madan's Thoughts on Executive Justice, a source several times cited by Hay, the author worries that petty jurors at assizes are receiving inadequate instruction from the judge, "as they usually consist of low and ignorant country people!".34 In his paper on the enforcement of the game laws, Hay points out that the farmers and tradesmen who were the typical jurors had interests different from those of the propertied 6lite.35 From an Elizabethan sample Samaha has reported finding "ordinary people in the town - petty tradesmen such as alehouse keepers and occasionally even day labourers" sitting on trial juries at Colchester assizes, and he con- cludes: "To send a suspect to the gallows . . required the concur- rence of every segment in the community, since they were all repre- sented at various stages of the criminal process .. .,.36 It hardly seems tenable for Hay to align petty jurors with the English social elite.

The whole of the criminal justice system, especially the prosecu- torial system, was primarily designed to protect the people, over- whelmingly non-elite, who su

I concede, although the actual evidence for it is thin, that elite victims must have been treated with greater courtesy, and allowed greater prosecutorial discretion, than victims like Moses Smith who came from lower social orders. Hay points to a single case, evidenced in the diary of a Lancashire squire, in which both the accused thief and the squire-prosecutor behave as though the prosecutor retains a power of non-prosecution, even though the prosecutor had used the J.P.s of Liverpool to obtain a search warrant and to conduct a pre- trial examination of the accused.29 If we assume that this was not an aberration, it shows us only that the prosecutorial system was not an engine of egalitarianism. Of course, the prosecutorial system of so stratified a society will be sensitive to the patterns of deference that otherwise pervade the society. What I resist is the idea that such practices justify treating the prosecutorial system as having been con- structed for the purpose of furthering the class interests of the dlite. It is one thing to avoid conflict with the privileged orders, another thing to promote class aims.

The most endemic aspect of what one might call prosecutorial dis- cretion is the phenomenon of non-reporting of crime. We are all familiar with the recent discussion about whether increases in re- ported instances of rape reflect increased incidence of the offence, or lessened aversion to reporting it. When we deal with grand larceny, which in all its forms was the predominant eighteenth-century felony, we can be sure that a victim who chose to forgive an offender by not reporting the crime could seldom be stopped. But this was hardly a

Indeed, one of the main themes in the history of the administration of the criminal law in the second half of the eighteenth century was the effort to encourage prosecutorial activity by the lower orders. In one sense this is a development that traces back to the 169os, when parliament began to enact the statutes that offered rewards for suc- cessful prosecution of certain heinous felonies, including highway robbery, burglary, housebreaking and horse-stealing.22 In the 1750s the campaign waged by Henry Fielding to obtain a subsidy for ex- penses for poor prosecutors and witnesses came to fruition in legis- lation of I752 and 1754,23 and we know from Dudley Ryder's assize diary that the statutes were being put to use. He tells us that it had become the convention to award five shillings per day in expenses, and in one case he reports that he refused an award to an innkeeper who seemed too prosperous.24

The prosaic nature of these offences will come as a surprise to readers who have taken seriously Hay's preoccupation with such legislation as that against food riots and work-place insurrections.is In my data we do not see offences that exemplify the advance of pre-industrial capitalism. Virtually all of the offences had been fel- onious back into the middle ages, a point Hay has lately acknowledged in another context in an article in this jou

If the criminals were often poor, their victims (whom we see serving as private prosecutors in the Old Bailey trials) were not much better off - a point that is played down in Hay's essay.19 In the Old Bailey cases we often cross a class line when we move from the offender to his victim, but not a class gulf. The victim is usually more propertied than the person who victimized him, although often only slightly. I have not hit upon a way of quantifying this, in part because infor- mation about the social status of the victim is so haphazard in the Old Bailey sources, but I think that anyone who studies a volume of the Old Bailey Sessions Papers will conclude that the victims seldom come from the propertied 61ite. They are typically small shopkeepers, artisans, lodging-house keepers, innkeepers and so forth. Included on the list of victim-prosecutors for the first dozen cases in the Octo- ber 1754 sessions, for example, are a loom maker, a brass founder, a wine merchant, and a pewterer, each prosecuting pilfering employ- ees; a baker's servant and a journeyman tailor prosecuting thieving prostitutes; a lodging-house keeper and a former room-mate prose- cuting for the theft of furniture and domestic goods from lodgings; and a calico printer who had been mugged on the street. Only one - a major who prosecuted a stablehand for horse-stealing - fits Hay's image with any ease.

It is in such terms that we must work toward a definition of the ruling

The hypothesis presented here is that the criminal law, more than any other social institution, made it possible to govern eighteenth-century England without a police force and without a large army. The ideology of the law was crucial in sustaining the hegemony of the English ruling class. This argument, if sound, helps us to explain their resistance to suggestions for drastic legal reform. It also casts some light on the mem¬ bership of that ruling class, and the character of their society

The private manipulation of the law by the wealthy and powerful was in truth a ruling-class conspiracy, in the most exact meaning of the word. The king, judges, magistrates and gentry used private, extra-legal dealings among themselves to bend the statute and common law to their own purposes. The legal definition of conspiracy does not require explicit agreement; those party to it need not even all know one another, provided they are working together for the same ends. In this case, the common assumptions of the conspirators lay so deep that they were never questioned, and rarely made explicit.

The opacity of the law also made it possible for the rulers of England to act in concert in managing hangings, arranging backstage the precise moment of the emotional climax. This was crucial not only at times of disorder; it was part of the routine administration of the law. The Hanoverians themselves sometimes took seriously their legal prerogatives in this respect. Shortly after he came to the throne, George III agreed to the routine mitigation of the death sentence to one of transportation in the case of a highway robber. He gave instructions, however, that as his Majesty hopes so to terrify this unhappy Man, on the present occasion that he may not hereafter be guilty of the like offense; it is the King’s intention that he should not be acquainted of his Majesty’s having extended his royal mercy towards him, 'till he comes to the place of execution. It will be proper therefore, that you give orders to the sheriffs, for this purpose, so that he be carried with the others, who are to suffer; to the place of execution, and that he be informed, then, and not before then, of the reprieve.

Edmund Burke used the same argument a half-century later in the case of the Gordon rioters. A week of looting, arson and unchecked defiance of authority severely shook the foundations of order. Burke therefore advised the government to limit the number of executions in spite of the gravity of the offence: ‘If I understand the temper of the publick at this moment, a very great part of the lower, and some of the middling people of this city, are in a very critical disposition, and such as ought to be managed with firmness and delicacy.’ He continued, ‘In general they rather approve than blame the principles of the rioters ... This keeps their minds in a suspended and anxious state, which may very easily be exasperated, by an injudicious severity, into desperate resolutions; or by weak measures, on the part of the Government, it may be encouraged to the pursuit of courses, which may be of the most dangerous consequences to the public. . .’ His recommendation was for six executions with maximum publicity, a calculated blend of terror and mercy under the strict rule of law.

The rulers of eighteenth-century England spent much time gauging opinion in this way. The fa?ade of power had to be kept undamaged. The gentry were acutely aware that their security depended on belief - belief in the justice of their rule, and in its adamantine strength. Hence, punishment at times had to be waived or mitigated to meet popular ideas of justice, and to prevent popular outrage from going too far and thereby realizing its own strength. The aim above all was to avoid exposing the law and authority either to ridicule or to too close scrutiny.

The pardon is important because it often put the principal instrument of legal terror - the gallows - directly in the hands of those who held power. In this it was simply the clearest example of the prevailing custom at all levels of criminal justice. Here was the peculiar genius of the law. It allowed the rulers of England to make the courts a selective instrument of class justice, yet simultaneously to proclaim the law’s incorruptible impartiality, and absolute determinacy. Their political and social power was reinforced daily by bonds of obligation on one side and condescension on the other, as prosecutors, gentlemen and peers decided to invoke the law or agreed to show mercy. Discretion allowed a prosecutor to terrorize the petty thief and then command his gratitude, or at least the approval of his neighbourhood as a man of compassion. It allowed the class that

Most successful petitions, however, were begun by other men of respectable position, with good connections, and their activity on behalf of the condemned could only enhance their ' | reputations as men of compassion and magnanimity. To the poor, the intercession of a local gentleman was proof of his power to approach the throne. He took no blame if the petition failed, for an unanswered plea was attributed to the determination of the king, who was popularly' believed to sign all death warrants. A successful outcome was attributed to mercy at the same exalted height - and Blackstone argued that ‘these repeated acts of goodness coming immediately from his own hand, endear H the sovereign to his subjects, and contribute more than anything to root ) in their hearts that filial affection, and personal loyalty, which are the sure establishment of a prince’.2 And all the chaplains, country gentlemen and peers who had helped to obtain a pardon shared somewhat in the reflected glory of the merciful ruler.

Often a long chain of interest and connection had to rattle before the judges and the king listened. In one case, not untypical, the condemned man pleaded with" the" gaoler and chaplain, the chaplain wrote to a more important London cleric, the latter appealed to William Wilberforce, and the evangelical M P asked the Home Secretary to consider the case. This pressure, plus the active intervention of Lord Ludlow, finally resulted in a pardon.3 It was the greatest good fortune to get the attention of a sympathetic peer. In a system which gave first weight to those with most power, their influence was naturally greatest.

The pardon thus served to save a good many respectable villains. It was all very well to hang Dr Dodd and Lord Ferrers, but to hang every errant son of the rich who tried his hand at highway robbery to pay gambling debts would have made too great a carnage m the better circles. Pardons also favoured those with connections for another reason: mercy was part of the currency of patronage. Petitions were most effective from great men, and the common course was for a plea to be passed up through increasingly higher levels of the social scale, between men bound together by the links of patronage and obligation.

Such an analysis stresses the narrowly legal use of the pardon, but ignores its social significance, the crucial point that interests us here. As in so many other areas of the law, custom and procedure allowed wholly extra-judicial considerations great influence. The pardon allowed the bench to recognize poverty, when necessary, as an excuse, even though the law itself did not. But the manner in which a pardon was obtained made it an important element in eighteenth-century social relations in three other ways. In the first place, the claims of class saved far more men who had been left to hang by the assize judge than did the claims of humanity. Again and again in petitions the magic words recur: ‘his parents are respectable persons in Denbighshire’; his father is ‘a respect¬ able farmer’; his brother is ‘a builder of character and eminence in Lon¬ don’.3 There are very few petitions that plead what one in 1787 called ‘the common excuse for larceny, poverty and distress’.4 It may have been the common excuse, but those requesting pardons knew it held little weight -

The nature of the criminal trial gave enormous discretion to men of property other than the prosecutor. Because the law did not allow those r accused of felony to employ an attorney to address the jury, a poor man’s 1 defence was often a halting, confused statement. If he had a clear alibi he was lucky: to establish innocence in more complicated cases might be very difficult, even when the judge was sympathetic. Character wit¬ nesses were thus extremely important, and very frequently used. It was not uncommon for a man accused of sheep-stealing, a capital offence, to bring a dozen acquaintances to court to testify to his honesty. If the jury did convict, such favourable testimony might still induce the judge to pass a lesser sentence, or recommend a pardon. Yet in character testimony too, the word of a man of property had the greatest weight. Judges respected the evidence of employers^respectaHIe farmers and neighbour¬ ing gentlemen, not mere neighbours and friends. A labourer accused of a serious crime learned again his enormous dependence on the power of property to help him, or abandon him, as it chose

He did understand, however, the consequences of private prosecution. The victim of the crime could decide himself upon the severity of the prosecu¬ tion, either enforcing the letter of the law, or reducing the charge. He could even pardon the offence completely by not going to court. The(^f/v\f reformers’ objections to this system are well known. Private prosecution was capricious and uncertain, and too often rogues escaped due to the distaste, compassion or fear of their victims. But reformers failed to acknowledge the great power this conferred on the prosecutor to make TheTaw serve his own purposesrin Cottu VwordsTthe accuser became ‘the arbitrator of tlieculprit’s fate’, and the law became an expression of his will. In short, it was in the hands of the gentleman who went to law to evoke gratitude as well as fear in the maintenance of deference.

Where authority is embodied in direct personal relationships, men will often accept power, even enormous, despotic power, when it comes from the ‘good King’, the father of his people, who tempers justice with mercy. A form of this powerful psychic configuration was one of the most distinctive aspects of the unreformed criminal 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.

The conservatives based their defence on comparisons with French tyranny, the occasional punishment of a great man, the limited protection the law gave to the poor. They did not dare to attempt a reasoned examination of the whole legal system for the edification of the mob. All men of property knew that judges, justices and juries had to be chosen from their own ranks. The jury, the supposed guarantee that an Englishman would be tried by his equals, had a sharp property qualification. The reason, simply put, was that the common Englishman could not be trusted to share in the opera¬ tion of the law. A panel of the poor would not convict a labourer who stole wood from a lord’s park, a sheep from a farmer’s fold, or corn from a merchant’s yard.

The motives for men of property to assist the poor to prosecute were a tangle of self-interest and paternalism. Some gentlemen simply believed that the law was the birthright of every Englishman, and most were anxious to convict a thief who might prey on them as well. The consequence was that more poor men were able to use the law than the system of legal fees would otherwise have allowed. The poor suffer from Theft as well as the rich, and -in- eighteenth-century England jtrobably.iar. more poor men lost goods,to thieves, if only because the rich were few and their property more secure. In recognizing that fact, and extending its„prot£CJdQlL..however imper¬ fectly,to ordinary men, the criminal law dul much^to justify itself and TKe~gentIemen who administered it.

Yet the idea of justice was always dangerous, straining the narrow definitions of the lawyers and the judges. It was easy to claim equal justice for murderers of all classes, where a universal moral sanction was more likely to be found, or in political cases, the necessary price of a constitution ruled by law. The trick was to extend that communal sanction to a criminal law that was nine-tenths concerned with upholding a radical division of property.

In the parlour of the Justice of the Peace, stare decisis and due process were not always so much in evidence as in the high courts. Many justices convicted on flimsy evidence, particularly when they were subservient to a local magnate, and when they were enforcing the game laws. It was perfectly possible to combine arbitrary powers with an obeisance to the rules, however, and it appears that most JPs made an effort to appear, at least, to be acting legally. Moreover, even at the level of the justice the rules of law could be used effectively on behalf of a labouring man. It was not unknown for labourers caught deer-stealing to make an ingenious use of the contradictory statutes protecting informers to escape punishment.2 The occasional success of such ruses, and the attempts to use them, probably helped sustain the belief that the integrity of the law was a reality and not merely the rhetoric of judges and gentlemen. Perhaps even more important in this respect were the frequent prosecutions brought by common informers, where the poor could go before a JP and use the law in their own interests. Prosecutions under the excise, game and turnpike acts - often against farmers and tradesmen who on most other occasions were those who used the courts — occasionally allowed the powerless to make the law their servant, whether for personal

‘Equality before the law’ also implied that no man was exempt from it. It was part of the lore of politics that in England social class did not pre¬ serve a man even from the extreme sanction of death. This was not, of course, true. But the impression made by the execution of a man of property or position was very deep. As executions for forgery became increasingly common throughout the century, more such respectable villains went to the gallows. The crime was punished with unremitting severity even though it was often committed by impecunious lawyers of good family. This rigour was distressing to many middling men: the agitation led by Johnson against the execution of the Reverend Dr Dodd, a former Royal Chaplain and Lord Chesterfield’s old tutor, was enor¬ mous.1 Dodd died at Tyburn in 1777 but he lived in popular culture for a long time, his case persuasive evidence that the law treated rich and poor alike.

Equally important were the strict procedural rules which were enforced in the high courts and at assizes, especially in capital cases. Moreover, most penal statutes were interpreted by the judges in an extremely narrow and formalistic fashion. In part this was based on seventeenth-century practice, but as more capital statutes were passed in the eighteenth century the bench reacted with an increasingly narrow interpretation.3 Many prosecutions founded on excellent evidence and conducted at considerable expense failed on minor errors of form in the indictment,

The diminished effective¬ ness of damnation to compel obedience was accentuated by the decline of the ecclesiastical courts since early Stuart times to mere arbiters of wills and marriages and occasional cases of slander.1 In sharp contrast, the sanctions of the criminal law had not lost their bite: ‘The government has wisely provided corporal and pecuniary punishments, and Ministers of Justice for the execution of them,’ Sir James Astry told his juries; ‘for the punishment of the Pocket, or a sound Whipping to some, is more effectual Rhetorick, than the preaching of Divine vengeance from the Pulpit; for such lewd Wretches has a sordid notion, that Preaching is only a Trade, and to the ministers of gospel, Godliness is great gain. . .’2 Timothy Nourse was more succinct: ‘a good strong pair of Stocks, and a Whipping-post, will work a greater Reformation than Forty Doctrines and Uses.’

for coupled with wealth, a considered use of imagery, eloquent speech, and the power of death, the antics surrounding the twice-yearly visits of the high-court judges had considerable psychic force. They wrere accorded far greater importance by contemporaries than by most his¬ torians, who have been concerned more with county government, par¬ ticularly at Quarter Sessions, than with the majesty of the law. The assizes were a formidable spectacle in a country town, the most visible and elaborate manifestation of state pow er to be seen in the countryside, apart from the presence of a regiment. The town was crowded, not only with barristers and jurors, but with the cream of county society, attending the assize ball and county meetings, which were often held in the same week. Tradesmen and labourers journeyed in to enjoy the spectacle, meet friends, attend the court and watch the executions. And the court arrived in town with traditional, and calculated, panoply

Yet two great questions hang over this remarkable code. The first concerns the actual number of executions. {The available evidence suggests that, compared to some earlier periods, the eighteenth-century criminal law claimed few lives. At the beginning of the seventeenth century, for example, it appears that London and Middlesex saw four times as many executions as 150 years later,3 Equally interesting is the fact that in spite of the growth in trade and population, the increasing number of convic¬ tions for theft, and the continual creation of new capital statutes through¬ out the eighteenth century, the number of executions for offences against property remained relatively stable, especially after 1750. The numbers of executions did not increase to match the number of convictions because of the increasing use of the royal pardon, by which transportation could be substituted for hanging, on the recommendation of the judges.

But he was in fact an acute observer of the bases of power in eighteenth-century England, and although he did not make the connec¬ tion explicit, the criminal law was extremely important in ensuring, in his words, that ‘opinion’ prevailed over ‘physical strength’. The opinion was that of the ruling class; the law was one of their chief ideological instru¬ ments.2 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. Moreover, its effectiveness in doing so depended in large part on the very weaknesses and inconsistencies con¬ demned by reformers and liberal historians.

Three bills from mid-century illustrate the process. An act of 1753 prescribing hanging for stealing shipwrecked goods was brought in on behalf of the ‘Merchants, Traders and Insurers of the City of London’ whose profits were being diminished by the activities of wreckers; the

What is certain is that Parliament did not often enact the new capital statutes as a matter of conscious public policy. Usually there was no debate, and most of the changes were related to specific, limited property interests, hitherto unprotected for one reason or another. Often they were the personal interest of a few members, and the Lords and Commons enacted them for the mere asking.

Many men, includ¬ ing learned ones, blamed the ever-increasing depravity of the people. In the 1730s Lord Chancellor Hardwicke blamed ‘the degeneracy of human nature’; almost a century later, Justice Christian indicted ‘the wicked inventions, and the licentious practices of modern times’.1 He drew a picture of a besieged government gradually making harsh new penalties as outrages demonstrated the uselessness of the old. But other observers were aware that the larger changes of trade, commerce and manufacturing might have something to do with the increasing weight of the statute book. Justice Daines Barrington cited ‘the increase of trade’: the great circulation of new and valuable commodities made any compari¬ son of England’s laws with those of other states unsound, for ‘till a country can be found, which contains equal property and riches, the conclusion cannot be a just one’.2 In similar vein, the editor of the sixth edition of Hawkins’s Pleas of the Crown wrote in 1788 that ‘the increase of com¬ merce, opulence, and luxury’ since the first edition of 1715 ‘has introduced a variety of temptations to fraud and rapine, which the legislature has been forced to repel, by a multiplicity of occasional statutes, creating new offences and afflicting additional punishments’.

In a mood of unrivalled assurance and complacency, Parliament over the century created one of the bloodiest criminal codes in Europe. Few of the new penalties were the product of hysteria, or ferocious reaction; they were part of the conventional wisdom of England’s governors.

This flood of legislation is one of the great facts of the eighteenth century, and it occurred in the period when peers and gentry held power with least hindrance from Crown or people. The Glorious Revolution of 1688 established the freedom not of men, but of men of property.

This was the climactic moment in a system of criminal law based on terror: ‘iTwe diminish the terror of house-breakers,’ wrote Justice Chris¬ tian of Ely in 1819, ‘the terror of the innocent inhabitants must be in¬ creased, andlhe cftinforts of domestic life must be greatly destroyed’. He himself had dogs, firearms, lights and bells at his own country home, and took a brace of double-barrelled pistols to bed with him every night.2 But his peace of mind mostly rested on the knowledge that the death sentence hung over anyone who broke in to steal his silver plate. A regular police force did not exist, and the gentry would not tolerate even the idea of one. They remembered the pretensions of the Stuarts and the days of the Commonwealth, and they saw close at hand how the French monarchy controlled its subjects with spies and informers. In place of police, how¬ ever, propertied Englishmen had a fat and swelling sheaf of laws which threatened thieves with death. The most recent account suggests that the number of capital statutes grew from about 50 to over 200 between the years 1688 and 1820.3 Almost all of them concerned offences against property.

Nelson Mandela’s analysis is relevant in this context, when he wrote that, ‘[n]on-violent passive resistance is effective as long as your opposition adheres to the same rules as you do’, but if peaceful protest is met with violence, its efficacy is at an end’. For Mandela, ‘non-violence was not a moral principle but a strategy’, since ‘there is no moral goodness in using an ineffective weapon’. Clarifying the rationale behind the African National Congress’ decision to adopt armed resistance, Mandela explained that it had no alternative course left available: ‘[o]ver and over again, we had used all the non-violent weapons in our arsenal – speeches, deputations, threats, marches, strikes, stay-aways, voluntary imprisonment – all to no avail, for whatever we did was met by an iron hand’.

A specific criticism of Hamas that is frequently deployed in this context is the ‘indiscriminate’ nature of its missile launches from Gaza, actions which both Human Rights Watch and Amnesty International regularly label ‘war crimes’. As observed by Perugini and Gordon, the false equivalence that this designation relies upon ‘essentially says that using homemade missiles – there isn’t much else available to people living under permanent siege – is a war crime. In other words, Palestinian armed groups are criminalised for their technological inferiority’. After the latest round of fighting in May 2021, al-Sinwar stated clearly that, unlike Israel, ‘which possesses a complete arsenal of weaponry, state-of-the-art equipment and aircraft’ and ‘bombs our children and women, on purpose’, if Hamas possessed ‘the capabilities to launch precision missiles that targeted military targets, we wouldn’t have used the rockets that we did. We are forced to defend our people with what we have, and this is what we have’.

Moreover, contrary to the Western media’s narrative that, without fail, portrays Israel as acting in ‘retaliation’, it is the actions of the Palestinians which are fundamentally reactive in nature, because the violence that Israel inflicts upon them is both perpetual and structural, and therefore automatically precedes any resistance to it. ‘With the establishment of a relationship of oppression, violence has already begun’, said Paolo Freire; ‘[n]ever in history has violence been initiated by the oppressed’. In Palestine, as Ali Abunimah recently wrote, ‘the root cause of all political violence is Zionist colonisation’.

In Augustine's hands the Roman Empire has lost its religioussignificance. Rome has been removed from the Heilsgeschichte, the

He had already abandoned the notionsabout the 'Christian times' of the Theodosian Empire which hehad, in his forties, shared with others of his generation.

Against this neat divisionof history into B.C. and A.D. Augustine came to lay increasingweight on 'distinguishing the times' within the Christian era. Theold schemes in which he mapped the course of the salvation history,whether in three or in six ages, were eclipsed by the increasingimportance he came to attribute to the profound changes withinthe last age: the change from the apostolic age and the age of themartyrs to the age of the Christian rulers and of the Church withcoercive power at its disposal. These were among the ideas whichnourished Augustine's assent to religious coercion. His assent,tragically, survived the repudiation, later in his career, of theideas which had provided his justification of religious coercion.

It was no mere passing infatuation with the Theodosian achieve-ment that found expression in Augustine's jubilant endorsement ofthe tempora christiana. For a decade or more his historical thinkingwas dominated by this motif. In the instructions written toDeogratias, the Carthaginian deacon, on the way to instructcatechumens, Augustine asserts specifically that the plena narratio ofthe history of salvation, beginning with the creation, should endwith 'the present times of the Church'.2 Nothing could be moredeliberate than his insistence in this work, dated 399-400, and inworks written at about this time, that the triumphant spread ofChristianity, assisted by the kings of the earth, is part of God'swork for the salvation of his people and the fulfilment of theancient prophecies.3 Looked at in this light, it quite properly formeda part of sacred history: the interpretation of the events Augustinehas witnessed is derived straight from the scriptures. The clue towhat is going on under his eyes is contained in the inspired pro-phetic books. The events seen in these terms are as much part ofthe history of salvation as the other phases of God's action fulfillingthe Old Testament prophecies and promises. They form not anoptional extra, but an essential component of the basic catechesis ofconverts; they are theology, as we might say, rather than Churchhistory. Around the turn of the century, Augustine was clearenough about the implications of his view of the tempora christiana.He had allowed the Theodosian establishment to drive a wedge intothe single, blank stretch of the 'last age' of history. The full history

.2 N o n e of these paganwriters drew the inference from the image of a Roma senescens thatRome was destined for a speedy end. In their work the image ofold age expresses a sense of achievement, of venerable maturity,of the well-founded claims of her traditions on men's loyalties.Nowhere is this more succinctly expressed than in Macrobius'slines vetustas quidem nohis semper, si sapimus, adoranda es

Growing old did not mean decline for Augustine. The analogy

There is no sacredhistory of the last age: there is only a gap for it in the sacred history

Whether Augustine is displaying world history within a six-fold or a threefold structure, the time since the Incarnation isidentical with the last age. It is the old age of the world, senectusmundi. There is no other decisive phase to look forward to, noturning-point to fear or to hope for; only the end.

history is homogeneous, that it cannot be mapped out in termsof a pattern drawn from sacred history, that it can no longercontain decisive turning-points endowed with a significance insacred history. Every moment may have its unique and mysterioussignificance in the ultimate divine tableau of men's doings andsufferings; but it is a significance to which God's revelation doesnot supply the clues.

The significant divisions in human history are, for Augustine,the turning-points in the sacred history. His divisions of historyinto 'ages' are all primarily ways of dividing the sacred history,and only derivatively applicable to universal history. The land-marks of the sacred history are the fixed points in universalhistory; universal history is articulated in a meaningful structurein so far as its course is projected on to a map defined by theco-ordinates of the sacred history.

Only'sacred history' will furnish the clues to what God has reallydone—apart from such insight as he may grant to individualsprivatim into his dealings with them personally

The interpretations and judgements of significance, the veryselection from the material and the omissions, are part of therevelatory purpose of the Spirit whose inspiration moves theauthor of the sacra historia.1 The writer's inspired insight presentsthe past events he tells of in a pattern of significance, a significancewhich may not be disclosed by the immediate context but onlyin its full unfolding in a possibly remote future.2 Only the Lord ofhistory can bring this about. Only he can vouchsafe an insight toa 'prophet' into his story such that this insight will link it withina single redemptive pattern with far-distant, future—or past—events, recounted by other authors inspired by the same sovereignLord.3 In this way, for instance, the psalmist's laments over hisown troubles become prophetic of the sufferings of Christ

This difference is thus not a difference between what is God'swork and what is man's.1 Augustine had no doubt that all historywas in a sense God's doing and, conversely, that the redemptivehistory told in the Bible is in fact carried out through humanagency. His distinction between 'sacred' and 'secular' history onlymakes sense if'history' is understood not as a series of past eventsbut as statements about the past, recording events. 'History', inthis sense, tells of what happened; it is not what happened, but itsrecord. 'History', so understood, carries with it the complexitiesof interpretation and selection, of emphasis and omission involvedin presenting an integrated narrative. If 'history' is recorded,recounted and interpreted events, 'sacred history' is history tothe recording, recounting and interpreting of which some specialquality is attached. In calling a strand of history 'sacred', nospecial claim is made on behalf of the mode of divine action indie events narrated and no special quality is attached to theseevents. The special quality resides in the narrative. The differencebetween 'sacred' and 'secular' history is therefore to be definedby distinguishing between two different kinds of narrative: the

A biblical author, whether he be a 'prophet' in the narrow(and usual) sense or not, will on this theory rank as a prophet

As a first rough approach to thedistinction between sacred and secular history we may definesacred history as the story of God's saving work, secular historyas all the rest, all that is left, so to speak, when we subtract fromhistory the strand singled out as 'sacred'.

All history, sacred and secular, has its origin in God's creationof the world.6 The full exposition of the faith {plena narrati

As early as in hisDe vera religione, written in Africa soon after his return, he couldassert unambiguously that the head and substance of the Christianreligion was contained in 'the history and prophecy of thetemporal dispensations of divine providence for the salvation ofthe human race' ;4 and there is much about the place of reason andof authority in Christian teaching in his earliest dialogues whichpoints in the same direction.5 He knew that the claim to truth ofChristian teaching stood or fell with the historicity of the eventson which it rests.

The narratives of secular history are co-ordinated with the sequence of the biblical history; some attemptis made—following, of course, Eusebius and Jerome—to anchorthe biblical story in the general history of antiquity. Even in thisbook, as we shall see, Augustine shows much creative originality;but it does not lie in his use of historical material. In this spherehe was an heir to the pioneers and the fourth-century masters ofthe craft. His interest in extra-biblical history, like theirs, had

The kind ofhistory Augustine must have had in mind was primarily that of theChristian chronographers, and especially Jerome's extended trans-lation of Eusebius's work in this genre. It is clearly to works of thistype he is referring when he speaks of their helping us to date theevents of the redemption history 'by Olympiads and the names ofthe Consuls'. Information of this kind could extend the rangeof our knowledge by being collated with scriptural data, or itcould serve to determine claims to priority among Greek philo-sophers and Hebrew prophets. These are precisely the purposesserved by Christian chronography.

If Christians during the fourth century were content to leavehistory as generally understood to pagans, they were by no meansuninterested in the past. From the beginning they based their faithon a particular group of historical events, in which they saw God'smighty acts for the salvation of men accomplished among hischosen people and brought to a consummation in Jesus Christ,who was born under Augustus and suffered under Pontius Pilate.They read and re-read the narratives of this redemption historyas contained in the books which had slowly crystallised into thecanon of the Bible. But they did not only read them, meditate onthem, comment on them; they could scarcely avoid reflecting onthe question: if the things told in these stories really happened,where did they fit into the past?

In an early chapter ofhis City of God2 he goes out of his way to say that he does notwish to enter the sphere of the historian: if he were to recount thedetails of the calamities that had afflicted Rome in the course ofthe Punic wars, he says, 'I too should become no more than awriter of history'. This was not his purpose; and throughout thefourth century, history conceived in this traditional sense hadbeen the preserve of pagan writers.

The lesson drawn by London from the American war, wrote Frederick Madden and David Fieldhouse, was ‘not that the first British empire had been too strictly governed or that policy had been too selfish or inflexible, but rather that it had been too permissive, conciliatory and in- effective’.”’ In the wake of the Seven Years War, some leading Britons had been embarrassed by the weight of empire, even going so far as to question its morality. By 1783, however, many of these scruples and uncertainties had gone. The result was a series of imperial reforms designed to clarify and strengthen London’s control: the India Act of 1784, the Canada Act of 1791 and the Act of Union with Ireland in 1800 being only the more important.

Everyone knows that the War of American Independence created a new nation in the United States of America and undermined an old nation, ancien régime France. But it did even more than this. It helped to forge a very different Great Britain in which both men and women would have to work out their ideas of patriotism as never before.

Instead of being sated with conquests, alarmed at their own pre- sumptuous grandeur as they been after 1763, the British could now unite in feeling hard done by. Their backs were once more well and truly to the wall, filling many of them with grim relish and renewed strength. The war refurbished their unity in another important respect. True, one important periphery, the American colonies, had been lost. But another, Scotland, had become linked to the centre to a greater degree than ever before, fastened tight by cords of mutual self-interest. This did not mean that antipathy towards the English in Scotland, or antipathy towards the Scots in England promptly evaporated in the warmth of a new tolerance and understanding. Obviously not. But never again was there an outcry against Scottish influence in the state on the scale initiated by John Wilkes and his supporters.”° And this was not because that influence declined, but rather because southerners became accustomed to its increasing. The English had been able to regard the heartland of their first empire, the American colonies, as peculiarly their own, pioneered by their own ancestors long before the Act of Union with Scotland. By contrast, in terms of those who won it, those who governed it and those who settled it, the Second British Empire would indeed be emphatically British. And a major share in the work (and the profits) of constructing Greater Britain would for a long time be sufficient for Scottish ambition.

nd the humiliation of defeat at the hands of a former colony was profound for a ruling élite possessed of strict notions of hierarchy and massive pride: ‘Your armies are captured’, London’s Livery told George III after his forces’ definitive defeat at the Battle of Yorktown, ‘the wonted superiority of your navies is annihilated; your dominions are lost’.”

As this candid admission suggests, it was not just concern for the maintenance of royal authority and a zest for empire that prompted so many politically active Scots to come out in favour of war with America, important though those motives were. The war also presented a splendid opportunity for impressing the authorities with their country’s loyalty, thereby ensuring that its interests and inhabitants would receive even more positive attention from London in the future. Such a reminder of Scotland’s value was judged all the more essential in the light of the recent Wilkite attempts to play on traditional Anglo-Scottish divisions. Wilkes’s xenophobic Englishness and popular success had been viewed north of the border as seriously prejudicial to those attempts, in progress since 1746, to construct a more united Great Britain and a more imperial Great Britain, in which Scots might see themselves, and be seen by others, as peers of the English. But now, as Alexander Murdoch has written, ‘the American War renewed their opportunit to prove their loyalty and enthusiasm for the concept of Britain’.”

uch of "empire's" potency was owing to the way in which interest in the colonies became entangled or grew from other, non-imperial, concerns and sensibilities - for example a concern about moral conditions and standards, anti- French feeling, pride in British naval and military success. The emotions that were stirred up by empire were also unstable; and they were closely dependent on military and diplomatic contin- gency. N

The line between domination of the seas and domination of territory and peoples could be a very fine one; sometimes it almost seems to disappear. But the emphasis most contemporaries placed on the maritime nature of Britain's empire was not unim- portant, or felt to be unimportant. Britain was not seen as an acquisitive power. Naval supremacy allowed Britain, or so its celebrators asserted, to remain gloriously isolated from the territ- orial conflicts of her continental neighbo

Wilson has argued that support for imperial expansion was an increasingly important aspect of "imperial sensibilities" in the mid-century. Yet territorial empire seems to have meant rather little to contemporaries. Perceptions or notions of national iden- tity may have increasingly revolved around Britain's status as a global power, but colonial acquisition was simply one of many expressions of this

Against this background, it would be remarkable if most merchants had not seen peace as preferable to war. And it was, in fact, only when the security of important branches of trade was directly menaced, as in the 1730s by Spain and the 1750s by France, that mercantile support for military action was forthcoming. Even then, the publicly stated aims of this action were defensive and limited. As one writer put it in the later 1750s, "as a commercial state, we [Britain] are not formed for conquest, and should not attempt to enlarge our dominions. Moderation is the best support of a trading kingdom".58

force. For all the enthusiasm with which the British reacted to military victories in this period, there was also a very widespread appreciation that, in most circumstances, British interests - which meant, in effect, trade - were best served by peace. A

Significantly, imperial expansion, when this did occur, was discussed in terms of security or "conservation". Perhaps the best illustration of this is the protracted debate in the final stages of the Seven Years War about the fate of Canada, finally seized from the French in 1759. Advocates of Canada's retention argued that this was the only proper safeguard that France would not recommence aggressive action in North America. "The possession of Canada was no view of Ambition", as one writer succinctly put it.49 Those who opposed keeping Canada also, as Peter Miller has recently emphasized, "recognized the overwhelming power of 'conservation' in the contemporary debate".50 Some even sought to turn it to their advantage. One pamphleteer angrily observed: "And from hence [the emphasis on conservation] pro- ceeded that utter Oblivion of all former Maxims of our Policy, whilst, under the Name of Security, we sought with Eagerness extensive and unprofitable Empire, and rejected moderate but lucrative Acquisition".51

Wilson has argued that historians who portray the British public as more interested in trade than in territorial empire are in danger of missing the point. Colonies, she rightly observes, were "crucial to the 'empire of the seas' ".45 What she seems to be suggesting in this context is that the notion of the "empire of the seas" was something of an exercise in national self-deception. There were some early Hanoverian commentators, such as Daniel Defoe, for whom trade and territorial control were closely inter- twined, although, interestingly, Defoe was a self-proclaimed critic of Britain's imperial policies and attitudes towards the exploita- tion of the colonies. Defoe compared Britain in this context unfavourably with Spain and Portugal.46 But most contemporaries did see Britain's empire as sui generis. This was not least because they wished to contrast it with other empires, ancient and contem- porary.47 They also sought differences between British and French international aims. Britain's colonies were a bulwark of trade and liberty. In contrast to France, Britain had no interest in territorial expansion. Britain, by virtue of her geographical position, was detached from the territorial rivalries that character- ized the Continent. Britain was not an acquisitive p

Despite the connection that was commonly made between colo- nial possessions and power, calls for imperial expansion were rare. The degree of bellicosity displayed during the Vernon agita- tion as well as in the later 1750s, when British military power seemed to be almost limitless, can be misleading in this context. The view most commonly expressed was that colonial aggrandize- ment was, outside of war, not a British goal. Britain's mid- century empire was bound together by trade. It was an "empire of the seas"; it was emphatically not an empire of conquest. As one writer observed, it was this that made British power all the more durable: maritime supremacy was a far firmer base on which to build than "a great Extent of Territory, Multitudes of Subjects, or rich and fruitful Countries".4

One universal assumption was that a very close relationship existed between the colonies and Britain's security. Security, in fact, provides one of the keys to unlocking mid-century attitudes towards the colonies and empire. It was the colonies and the wealth they generated in the form of trade - what Andrew Fletcher of Saltoun had called at the turn of the century "the golden ball"42 - together with the ships and seamen they gave employment to, that provided Britain with the essential sinews of war. It was this that defined the purpose of colonies and their relationship to the metropolitan power. They were created by the metropolitan power to strengthen her trade and international position. It was a perception that was shortly to become a source of friction with the American colonists, who were developing a view of empire and their role in it that had rather different emphases.4

If, then, it was military and diplomatic rivalry that provided the impetus behind most press coverage of the colonies and empire in this period, this coverage also never at any time obscured a deep-rooted concern in the same papers about devel- opments on the Continent. In

Wilson has argued that an expanding press was crucial to the dissemination of news and information about trade and empire in the eighteenth century. She has also suggested that from at least the 1730s the issues of trade and empire received increasingly close attention from most elements of the pr

The view that success or failure in war directly reflected divine judgement was also very strongly articulated during and immedi- ately after the Jacobite Rebellion o

First, the navy and naval prowess had been at the heart of perceptions of national identity from at least the late sixteenth century.21 The navy was seen as a central actor in Britain's peculiar and distinctive history, past, present and future. In this myth-history, liberty, Protestantism and trade were inextricably interwined. It was through Britain's naval forces that all three had been (and continued to be) protected against a hostile interna- tional Catholicism, a relationship symbolized by the defeat of the Armada and by the naval exploits of Drake and Raleigh in Queen Elizabeth's reign.22 S

Probably the most influen- tial were feelings and attitudes that were not themselves specific- ally imperialist in nature. It was also war rather than empire that served as the major focus for their expression. The contemporary fascination for war, which was frequently remarked upon at the time, partly reflected the role of war and military campaigns as spectacle - an important factor shaping attitudes towards empire

But participation in the colonial trades only provides part of the explanation for the extent of contemporary reactions to these victories. What is so striking about these reactions, as the letters to the London Evening Post in 1758 make clear, is how they appear to have spread across areas and communities with very different economic interests. While this does not mean that material factors were unimportant, it does suggest that their influence was not straightforward. It is also suggestive of the influence of non-material factors.

Nevertheless, the range and number of places that hosted celebrations is a strong indication that men of middling rank were prominent in their organization, as is the leading role played by town authorities in many instances. Th

rade. In this way, Wilson in particular has sought to establish linkages between, on the one hand, empire and its meanings in the mid-century and, on the other, changing patterns of consumption, linkages which are suggestive of developing and increasingly distinctive urban social and political identities. More concretely, Wilson argues that, under the stimulus of changing patterns of consumption, production and trade, members of the middling ranks began to promote new, more aggressive attitudes towards empire and imperial expansion.6 At the same time, they were also reaching

The absorption of so many previously Jacobite families and in- dividuals into imperial service represented an extreme example of that much wider and more important trend: namely, the increased integration of Scots into the British community in the aftermath of the ’Forty-Five and in response to war and its conquests. Yet Jacobite infiltration of the empire also stands as a powerful reminder of the ambiguities of integration. As I have argued, Scots were not just passively assimilated. They did not invariably become honorary or, according to one’s point of view, dishonourable Englishmen. They brought their own ideas and prejudices to bear on the business of being British. And in the case of Scottish empire-builders who had once been closely linked with Jacobitism, this could mean applying certain attitudes to authority to virgin territory in North America, India and the West Indies.

And what was true for this tiny minority of active imperialists applied far more broadly. Investing in empire supplied Scots with a means of redressing some of the imbalance in wealth, power and enterprise between them and the English. For Scottish merchants and tradesmen, access to the newer colonial markets proved doubly advantageous because, unlike older settlements and the customary European markets, they were not dominated by English merchant- men. For Scots who had trained in medicine, the level of disease in the colonies ensured that there were always lucrative if dangerous openings available there. For skilled artisans, blacksmiths, wrights, coppersmiths, joiners and the like, leaving Scotland for the West Indies or other possessions could be a means of making enough money to buy their own slaves and set up a business. Other Scots found niches in the colonies as clerks, or as book-keepers, or as legal assistants. ‘It is impossible to be precise about the numbers

For some Scots, though, it was less the job and trading op- portunities that empire provided, than the idea of empire that proved most compelling. If Britain’s primary identity was to be an imperial one, then the English were put firmly and forever in their place, reduced to a component part of a much greater whole, exactly like the Scots, and no longer the people who ran virtually the whole show. A British imperium, in other words, enabled Scots to feel themselves peers of the English in a way still denied them in an island kingdom. The language bears this out very clearly. The English and the foreign are still all too inclined today to refer to the island of Great Britain as ‘England’. But at no time have they ever customarily referred to an English empire. When it existed, as in retrospect, the empire has always been emphatically British. In terms of self-respect, then, as well as for the profits it could bestow, imperialism served as Scotland’s opportunity.°

Having more to win and less to lose, Celtic adventurers were more willing to venture themselves in primitive conditions.

Such men were the stars of the imperial firmament, rich, resplendent and only rarely emulated. But there were a multitude of lesser lights as well, and in some parts of the empire a quite

nd for many, it was. Hector Munro came from a family in Cromartyshire which had mattered in the fifteenth century but had dwindled into poverty thereafter. A family friend bought him a commission in one of Loudoun’s Highland regiments, but it was only when he sailed to India with his men in 1760 that his career took off. Munro literally fought his way to notice, in 1764 winning the Battle of Behar which effectively ensured that Britain would annex Bengal. He promptly went home and used his share of the loot to build up a Scottish estate and make himself a Member of Parliament. For some Scots, though, empire became a profession in itself, an opportunity for power, responsibilities and excitement on a scale they could never have enjoyed back home. James Murray had gone into the army in 1740 weighed down with two dis- advantages. He was the fifth son of a poor Scottish peer and his brothers were Jacobites. It took him twenty years’ active service to establish himself as a brigadier, and his big break came only when General James Wolfe chose him for his campaign against Quebec. Victory, together with Wolfe’s death, gave him his chance. He stayed on in the province restoring order, and in 1760 was duly rewarded by being made Britain’s first Governor of Canada.

The majority of Scottish army officers were better but also poorer than this, more often than not the sons of impoverished gentry families. For them, the rapid succession of imperial wars in the second half of the century was a godsend. Of course, their chances of dying in battle soared, but so too did their prospects of rapid advancement through the ranks and their opportunities for booty. ‘I was born a Scotsman and a bare one’, Sir Walter Scott would write, “Therefore I was born to fight my way in the world’, and this gets the connexion between economics and aggression exactly right.°* For Scottish younger sons, prevented by convention from going into trade like some of their English equivalents, the path to glory was also one of the few available pathways to fortune. Securing British victories could be the means of ensuring their own.

By dwelling on how irreversibly alien the Scots were, he offered a reassurance to his more intolerant and worried countrymen that they would not be absorbed into an all-embracing and non-Anglocentric Great Britain. Scottish difference, he implied, was a guarantee that traditional Englishness and English primacy within the Union would remain intact. This was exactly what large numbers of English men and women wanted to hear. Yet, in practice, it was a deeply misleading reassurance. For—and this is the second point— the real significance of Wilkite complaints that Scots were invading the British polity to an unprecedented extent is, quite simply, that they were true.

If we see Wilkes in this light—as a man offering reassurance that plucky Englishmen could win through and maintain their identity amidst the confusions and challenges of the post-war world-—his noisy Scottophobia becomes far more comprehensible. Scots, so the Wilkite argument went, were inherently, unchangeably alien, never

In the confused aftermath of the Seven Years War, as men and women struggled to come to terms with unprecedented and ex- pensive victory and new imperial responsibilities, Wilkes affirmed the traditional canons of Englishness. Through his own words and exploits, he offered boisterous reassurance that the English were a uniquely free and distinctive people who could keep alien and arbitrary rule at bay, a reassurance that was all the more potent

Support for the Seven Years War had been remarkably and deceptively unanimous. In contrast with every previous war with France since 1689, there had been no French-sponsored invasion of the British mainland on behalf of the Stuart claimants to the throne, and no even halfway serious plot for an internal rising on their behalf.° By 1763, it had become clear to even the most paranoid Whig politician that—in England and Wales at least—Jacobitism was now too marginal to influence the course of events. Tories, both within and outside Parliament, had been as satisfyingly belligerent during the war as their Whig counterparts. The Hanoverian dynasty was once and for all securely entrenched. So, apparently, was Scotland’s union with the rest of Great Britain. For the first time ever, the British army had been able to recruit men on a massive scale from the Scottish Highlands. Those clans that had taken up arms against the Union in 1715 and in 1745 had been wooed to the British cause by way of favours and promotions for their former chieftains, and transformed into the cannon-fodder of imperial war. ‘I sought for merit wherever it was to be found’, as William Pitt the Elder boasted: ‘I found it in the mountains of the North. ..a hardy and intrepid race of men... They served with fidelity as they fought with valour, and conquered for you in every part of the world.”®

The spoils of unprecedented victory unsettled, then, in part because they challenged longstanding British mythologies: Britain as a pre-eminently Protestant nation; Britain as a polity built on commerce; Britain as the land of liberty because founded on Protestantism and commerce. All of these premises seemed to be put in question by the scope and nature of the post-war British empire.

The military component of the pre-war empire had in practice been considerable, but it had none the less been popularly perceived as a trading empire, as the beneficent creation of a liberty- loving and commercial people, and thus quite different from the Roman and Spanish empires, bloodily and insecurely raised on conquest. The spoils of the Seven Years War made it far more difficult to sustain this flattering contrast between the failed empires of the past and the British empire of the present. And this made for problems of morale as well as practical difficulties. Now that Britain’s empire no longer pivoted on commerce but was sustained by force of arms like earlier empires, what guarantee could there be that it would not in turn decay and destroy the mother country in the process? The question nagged at a whole generation of British intellectuals, most profitably Edward Gibbon who made the decision to chronicle the decline and fall of the Roman empire just one year after the signing of the Treaty of Paris.?

The mechanisms of trade helped to bring together the different regions of Great Britain. The business of trade helped to stock the Exchequer. The merchant marine was the Royal Navy’s training ground. And men and women of trade played a signal part in preserving the Hanoverian dynasty.

The political and patriotic responses of those engaged in trade were never monolithic. There were simply too many of them, with too many conflicting incomes, needs and aspirations, for that ever to be likely. But traders of all kinds did have a stake in Great Britain’s survival, in its independence and in its unity which made it the West’s largest free market.

nce won, of course, trade routes, colonies and monopolies had to be defended. And in an extremely aggressive world system, this meant having constant recourse to the Royal Navy. During wartime, naval protection was indispensable if British merchant- men were to be safeguarded from enemy warships, and from the privateers operating out of French ports like St Malo and Brest. In peacetime, the navy worked to keep foreign merchantmen out of British territories overseas, and to provide an escort for British ships plying the more hazardous trade routes.*

But the Seven Years War, with its huge gains in North America, the West Indies, Africa and India, seemed to confirm, more dra- matically than any previous conflict had done, that commerce could, in Edmund Burke’s words, be ‘united with, and made to flourish by war’, that British power and commercial profit went hand in hand.*

Much of these re-exports went to Continental markets. Naturally, however, a great deal of colonial goods was retained for the domestic market, and this was the third and perhaps most far- reaching consequence of imperial trade: the impact it had on perceptions of commerce and empire at home. Exotic goods which had previously been imported only in small quantities for a cosseted élite—silk, rice, dyestuffs, coffee, tobacco and, above all, tea and sugar—now became far more abundantly and broadly available. By the 1740s, moralists like John Wesley and Jonas Hanway were complaining that travelling salesmen were even selling tea by the cup to haymakers at harvest-time, and that the ‘very chambermaids have lost their bloom by drinking tea’.*’ This was an exaggeration as far as the bulk of the poor were concerned. But it was the case that colonial consumer goods had by now become sufficiently widespread to bring the spoils of empire to the level of every village shop, and the attractions of empire to the minds of many more Britons than ever before:

Imports from North America increased almost fourfold in value in the first half of the century, West Indian imports more than doubled in the same period, while the amount of tea shipped into the country by the East Indian Company (as distinct from by the smugglers who brought in a great deal more) increased more than forty-fold from some 67,000 pounds weight in 1701 to close to three million pounds fifty years later.°° Exports to the colonies grew just as dramatically. In 1713, British merchants shipped out some £32,400-worth of exports to the Carolinas. By 1739, exports to these same colonies were worth seven times more than this.°” In all, 95 per cent of the increase in Britain’s commodity exports that occurred in the six decades after the Act of Union was sold to captive and colonial markets outside Europe.

If this were not enough to endear commerce and manufacturing to Britain’s landed classes, relieved now of some of the weight of direct taxation, there was also the matter of the Royal Navy. This had been expanding in size and firepower since the 1650s, and by the middle of the eighteenth century needed a shipboard population of more than 40,000 men in time of war.” To raise them, it relied on the mercantile marine. Many of the navy’s volunteers first learnt their seacraft there, and so, too, did virtually all of the men it pressed into service. Despite the black legends that have gathered around press gangs, they rarely in fact preyed on just any poor man they encountered on shore. Both the law and the practical demands of shipboard life demanded that they confine their attentions to ‘seamen, seafaring men, and persons whose occupations or callings are to work in vessels and boats upon rivers’. In wartime, the Royal Navy needed experienced seamen, not reluctant tyros who were all too likely to get their shipmates as well as themselves killed. The peacetime training and employment supplied by Britain’s merchant service were thus indispensable for the operation of its naval power,

The second reason why the British élite was peculiarly responsive to the demands of trade was far more important, however. Trade was simply much too valuable for them to do otherwise. The great trading companies like the East India Company, the Levant Com- pany and the Russia Company, together with London’s mercantile community in general, supplied successive governments with their most substantial creditors. The long-term loans that funded on average some 30 per cent of wartime expenditure after 1688, and just under 40 per cent of the cost of the American war, came in the

Yet in some respects this din of acclamation was deceptive. In the eyes of almost all of the political class, trade was the mainspring of Britain’s economy and a vital part of its identity, yes. But in terms of wealth, status and power, men of trade in this society came a long way behind men of land, and continued to do so for a very long time. Even in the mid-nineteenth century, landed millionaires would be more numerous than millionaires who had built their fortune out of commerce.'? Intermarriage between the wealthier landowners and families still active in trade was rare, and even penurious younger sons were more likely to seek refuge in the armed forces, in the law or in government office than in trade.

And the claim that trade was the muscle and the soul of Great Britain, both the source of its greatness and the nursery of patriots, was abundantly echoed in the poetry, drama, novels, newspapers, tracts, parliamentary speeches, private correspondence, even the sermons of the time. In 1718, the chapter on “Trade’ in the annual directory The Present State of Great Britain, read by virtually every- one who mattered, opened with the ringing assertion that “Next to the purity of our religion we are the most considerable of any nation in the world for the vastness and extensiveness of our trade.’

But the evidence suggests, i rst, that slave-owners were often among the most active of the subscribers, and, second, that in some railway companies, but a distinct minority, slave-owners subscribed a signii cant part of the total. For example, the Glasgow, Paisley, Kilmarnock and Ayr Railway Company was one of the focal points of slave-owning invest-ment. In 1837, some 10 per cent of the total of £452,900 raised can be attributed to slave-owners: the lists are headed by Theodore Walrond , William Leckie Ewing , John Miller and his wife Mary Robinson Miller , all slave-owners and three of them Glasgow merchants

Furthermore, what Williams argued was not simply that the proi ts of the triangular trade were reinvested in British industry ‘where they supplied part of the huge outlay for the con-struction of the vast plants to meet the needs of the new productive pro-cess and the new markets.’

By fostering a dissociation of Britishness and colonialness to a degree impossible in the almost wholly settler Empire of the seventeenth and eighteenth centuries, the second British Empire, with its wide array of subject peoples and its development of ‘new institutions of control, coercion and audit and of the philosophical and aristocratic identity of social or metropolitan superiority’ that informed those institutions,118 may, in combination with the emergence of fullblown ‘scientific racism’, have produced something of a de-emphasis upon the idea of liberty in the British Imperial identity. Yet, by simultaneously taking the lead in the anti-slavery movement and by being the first Europeans to abolish (p.230) slavery in their colonies, Britons also reaffirmed their conception of themselves as a nation and an Empire that stood high for liberty.

The insistence with which colonial protagonists adumbrated these themes persuasively testifies to the fact that at the time of the American Revolution Britons, in the far peripheries as well as at the centre of the British Empire, still regarded liberty as the essence of Britishness. Once the actions of the metropolitan government seemed aggressively to contest their claims to a British identity, colonists made every effort to articulate and secure metropolitan acknowledgement of those claims, to make clear, as Burke said, that they were ‘not only devoted to liberty, but to liberty according to English ideas and on English principles’.112 If we can assume that the core of an Imperial identity consists of those conceptions that are most deeply felt or internalized in the far reaches as well as at the centre of an Empire, then, at least up until the American Revolution, liberty, as it had been from the beginnings of English overseas expansion, was the single most important ingredient of an Imperial identity in Britain and the British Empire. At the heart of the first British Empire had always been ‘the idea of a political system co-ordinating Great Britain in lasting solidarity with communities beyond her borders whose constitutions conformed to her standards’, whose political and legal institutions incorporated ancient traditions of British liberty.

Throughout the latter half of the eighteenth century, the rapidly growing anti-slavery movement more and more focused attention on the association of racial slavery with the colonies, and fostered the conviction in Britain that ‘no People upon Earth’ were such ‘Enemies to Liberty, such absolute Tyrants’, as the American colonists. With ‘so little Dislike of Despotism and Tyranny, that they do not scruple to exercise them with unbounded Rigour over their miserable Slaves’, colonists were obviously ‘unworthy’ of claims to a British identity or to the liberty that was central to that identity

The expansion of British activities in India and the massive employment of enslaved Africans and their descendants throughout the British American colonies strongly reinforced the image of colonial degeneracy in Britain. The more Britons learned about India, the more convinced they became that, as Dempster remarked in Parliament, the ‘eastern species of government’ and society was replete with ‘rapines and cruelties’.97 Beginning in the late 1750s, the transactions of Robert Clive and others persuaded many Britons that, in their rapacious efforts to line their own pockets, their countrymen in India had themselves often turned plunderers and been guilty of‘Crimes scarce inferior to the Conquerors of Mexico and Peru’.

As those of similar persuasion thought more deeply about the nature of the Empire, they began to suggest that liberty not only ‘distinguish [ed]’ the ‘British colonists…from the colonists of other nations’, but was responsible for the Empire’s extraordinary success.81 In their two-volume Account of the European Settlements in America, Edmund and William Burke expressed their confidence that colonial commerce had flourished as it had because ‘of the freedom every man has of pursuing it according to his own ideas, and directing his life according to his own fashion’.82 As they surveyed the extraordinary growth and development of the British colonies, analysts such as John Campbell and Adam Smith concluded that, as Campbell wrote, ‘in their very Nature Colonies require Ease and Freedom’, and that colonization was ‘not very compatible with the Maxims that prevail in despotic Governments’.83 To Smith, the experience of the British colonies seemed conclusive proof that, along with plenty of good land, extensive liberty, permitting wide latitude in self-direction, was one of‘the two great causes of the prosperity of new colonies’.

For those who viewed the Empire in this expansive way, the transfer of English liberties to the colonies was precisely the characteristic that distinguished the British Empire from others. Just as Britain was the home of liberty in Europe, so also was the British Empire in America. ‘Without freedom’, Edmund Burke remarked in 1766, the Empire ‘would not be the British Empire’/78 In America, said Young, ‘Spain, Portugal and France, have planted despotisms; only Britain liberty’.79 ‘Look, Sir, into the history of the provinces of other states, of the Roman provinces in ancient time; of the French, Spanish, Dutch and Turkish provinces of more modern date,’ George Dempster advised the House of Commons in 1775, ‘and you will find every page stained with acts of oppressive violence, of cruelty, injustice and peculation.’

The colonial position in this contest implied a conception of colonies as extensions of Britain overseas and of colonists as Britons living ‘abroad and consequently the brethren of those at home’, virtual ‘mirror images’ of those who still resided in Britain.73 This, as Benedict Anderson has pointed out, implied that the colonies were societies ‘parallel and comparable to those in’ Britain and that, in their lives, colonists were ‘proceeding along the same trajectory’ as those who remained in the British Isles.74 From this perspective, held by many people in Britain, the British Empire was ‘a free and virtuous empire, founded in consent and nurtured in liberty and trade’,75 and colonists were ‘fellow- subjects’76 who, though ‘living in different parts of the world’, together with those who resided in Britain formed, as Young remarked in 1772, ‘one nation, united under one sovereign, speaking the same language and enjoying the same liberty’.

In the immigrants’ efforts to put a European stamp upon colonial landscapes, the legal systems by which they defined the new social spaces they were creating were critical. During the second wave of European imperialism, in the nineteenth and early twentieth centuries, European law frequently served the conquerors as an instrument of domination and control.

Glossing over ‘the brutal, exploitative and violent processes of “trade” and colonization (including the immensely profitable trade in slaves)’, this commercial vision of the Empire thus treated colonies as ‘emblem[s] of English superiority and benevolence’ and justified ‘British imperial ascendancy as a salvation to the (p.220) world’. In this way, they ensured that Britain’s ‘nascent imperialist sensibility’ would powerfully reinforce British national identity.63 In contrast to those of other European powers, the British Empire, wrote the poet James Thomson, was obviously ‘well-earned’.64 ‘There is nothing can more fully or more sensibly evince the Truth of our Assertions in respect to the commodious Situation of this Island, the superior Genius of its Inhabitants, and the Excellance of our Constitution, than…the Establishments we have made in all Parts of the World’, wrote Campbell in 1774, ‘for these must be considered as so many distinguishing Testimonies, so many shining Trophies of our maritime Skill and naval Strength’, trophies that ‘extend[ed] the Fame, display[ed] the Power and support[ed] the Commerce of Great Britain’.

For many Britons, however, colonies were not merely an economic but a civilizing project. They had already had considerable experience with peoples close to home, Gaelic Irish and Highland Scots, who, living primarily as graziers or hunters and fishermen, seemed to have no settled agriculture or permanent homes and appeared to be ‘of a different and inferior race, violent, treacherous, poverty stricken, and backward’.56 With regard to such peoples in the peripheries of the British Isles, the role of the core societies, as Sir Thomas Smith noted in 1565, was to educate them ‘in virtuous labor and in justice, and to teach them English laws and civility and to leave [off] robbing and stealing and killing one (p.219) another’.57 Thus, in the sixteenth century, exponents of English colonization of Ireland justified it as a device by which the English might foster Irish ‘appreciation for civility so that they might likewise move toward freedom’, Protestantism, and refinement.5

Colonies were an important adjunct of commerce, and trade with the colonies constituted an expanding sector of British overseas commerce. As early as 1707, some observers thought that the colonies had been responsible for a substantial part of ‘Britain’s great Increase in Wealth’ over the previous half-century.52 Six or seven decades later, contemporaries disagreed about the precise extent of the colonies’ contribution to Britain’s overseas trade, but few doubted that that contribution was both substantial and critical. In his general History of Commerce, published in 1764 just after Britain’s great triumph in the Seven Years War, Anderson claimed that the American plantations had been exclusively responsible for ‘the change in our national circumstances’ which brought the ‘Britannic Empire’ into being.

These developments, according to Campbell, seemed to have fostered a psychology of ‘Independency’ and spread a ‘Consciousness’ that the industry that produced wealth and independence was ‘the Result of [the] Freedom’ that ‘derived from and’ was dependent ‘upon our Constitution’.50 This widespread identification of commerce with liberty gave rise to the further conviction that, as a newspaper-writer put it in 1770, ‘riches, trade and commerce’ were ‘nowhere to be found (p.218) but in the regions of freedom’, such as Britain or, to a lesser degree, the Netherlands.

Those who celebrated Britain’s expanding commercial activity argued that commerce was principally responsible for effecting a revolution in the ‘manners, customs, and habits’ of the British people.45 Specifically, they suggested that, in combination with the traditional British spirit of liberty, commerce had softened the manners of the people, made them more polite and civil, and reinforced the ‘Spirit of Humanity’ by which Britain had ‘always been distinguished’.

But contemporaries also associated other characteristics with the emerging national identity: social openness,31 a penchant for scientific and intellectual achievement,32 and, most significantly, prosperity and trade. The widespread stress upon the superiority of English food (’roast beef and plum pudding’) and clothing (‘no “wooden shoes”’) over those of other Europeans, traceable at least as far back as Fortescue, expressed pride in England’s prosperity.33 The vaunted productivity of its agriculture seemed to distinguish Britain from its continental neighbours. But pride in the relative abundance of British economic achievements rested even more firmly on commerce.

Colley does not explicity consider the extent to which the many colonies of settlement and other outposts in the far peripheries of the Empire shared this equation of Britishness with Protestantism. Whether this association enjoyed quite so decisive a role in the shaping of colonial identities outside New England, a region always anomalous in colonial British America, and beyond circles of religious Dissent, is doubtful. Certainly, the recurrent struggles against the Catholic powers reinforced the colonials’ already strong awareness that, whatever their distance from the home islands, British peoples were overwhelmingly Protestant peoples. Especially during the Seven Years War, colonials endorsed the metropolitan view of the conflict with France as a struggle between Protestantism and Catholicism and heralded Britain’s ultimate success as a victory for the Protestant Succession and an example of God’s special favour toward the enlarged British Empire

For Colley, the importance of religion in this nation-building, identity-constructing process was fundamental. ‘Protestantism’, she writes, ‘was the foundation that made the invention of Britain possible’, the ‘common commitment’ by which the English, Welsh, and Scots ‘could be drawn together—and made to feel separate from the rest of Europe’. ‘More than anything else’, she argues, ‘this shared (p.215) religious allegiance combined with recurrent wars…permitted a sense of British national identity to emerge alongside of and not necessarily in competition with, older, more organic attachments to England, Wales or Scotland, or to county or village.’

Yet, as Colley has argued in her magisterial effort to explain how the diverse peoples of the British Isles constructed a national identity as Britons during roughly the century and a quarter following the union between Scotland and England and Wales in 1707, the wars of 1689 to 1815 powerfully revived the conception of England or, after the Union, Great Britain as the principal champion of Protestantism. During these years, Great Britain was at war more than half of the time; Catholic France was the main antagonist, replaced between 1739 and 1744 by Catholic Spain, and the fighting stretched from Europe east to India, south to Africa, and west to the Americas. The new British nation that arose from the Union, Colley emphasizes, ‘was an invention above all forged by war’, with a national culture that largely defined itself through fighting’. But, she contends, war ‘could never have been so influential without the impact of religion’. ‘Protestant Britons believed they were in God’s special care’ and that Britain was the ‘Protestant bastion against Roman ambitions’. Britons were ‘Protestants struggling for survival against the world’s foremost Catholic power’, France.

Indeed, after Gustavus Adolphus, rather than England, saved Protestantism in Germany during the Thirty Years War, England effectively ‘ceased to be the leader of Protestant Europe’,25 and during the last half of the seventeenth century the classical persona of Britannia (which first appeared on coins of the realm in 1665) rapidly became the chief symbol of English pride, replacing the idea of England as an elect nation with the broader and more secular conception of England as the home of constitutional and religious liberty, intellectual and commercial achievement, sea-power, and emerging Imperial greatness.26 By the eighteenth century ‘the belief that the English were an elect nation…may have been of relatively minor importance’ in the structure of English national identity.

During the Elizabethan and Jacobean eras, exponents of English expansion, including the two Richard Hakluyts and Sir Walter Ralegh, had repeatedly justified aggressive action against Spain as a means to extend the domain of the true religion. Within the emerging English Empire, almost all the native Irish remained Roman Catholic. But Ireland’s new English and Scottish settlers and the overwhelming majority of English and Scottish colonists who went to America were Protestant, and the English overseas Empire, from the beginning, defined itself in opposition to the Catholic empire of Spain. Yet, if the English Empire was largely (p.214) Protestant, the Protestantism it represented was less and less unitary. From the end of the sixteenth century, alternative theologies turned to the word of God to champion forms of church polity, modes of worship, and religious beliefs that challenged the hierarchical order of the established Church of England. Thereafter, differences between Anglicanism and Dissent were to be an enduring element in English life and the life of English communities overseas.

If possession of this unique system of law and liberty was the most significant marker of the English identity during the early modern period and the British identity thereafter, Protestantism was also important to it. England was a Protestant nation, and the English were a Protestant people. In his vivid Acts and Monuments, first published in 1554 and republished in enlarged editions six times before 1600, John Foxe chronicled the sufferings of English martyrs at the hands of the Catholic church and heralded England as the chief bulwark against papal aggression. Citing England’s prosperity, the seemingly miraculous defeat of the Armada, and the remarkable political stability enjoyed during Elizabeth I’s long reign as evidence of God’s favour, Foxe and other English Protestant leaders developed the idea that theirs was a nation under covenant with God.

Whether they had taken its cultivation to excess or not yet taken it far enough, liberty, as Britons pointed out throughout the eighteenth century, not only remained the ‘hallmark of Englishness’ but rapidly became the emblem of British-ness. If Scots had their own legal system differing significantly from the English, they none the less, as Linda Colley has noted, shared with the English and Welsh the ‘cult of Parliament’.20 Moreover, the increasing use of the term ‘Free-born Briton in the decades after the Union of 1707 encouraged the emergence of ‘a British imperial identity, one in which Caledonians and Americans, as well as the English, could participate’. This identity in which Protestant Irish could be (p.213) included emphasized the benefits of the British ‘constitution and the much-vaunted liberties it guaranteed’.21 Especially as the Union became ever more secure in the wake of the last Jacobite uprising in 1745, writers identified all Britons with liberty and celebrated the fact that the sons, not just of Englishmen, but of all ‘Britons’ were ‘born to Liberty’.

Whereas in other countries liberty had sometimes and imperfectly ‘been ingrafted by the Acts of Policy’, observed Brown, in England it thus seemed to have been ‘laid in Nature’, shooting up ‘from its natural Climate, Stock, and Soil’.15 To its exponents, the truth of this line of argument seemed to be confirmed by England’s economic abundance and large population, which they interpreted as both the foundations for and the effects of that island’s ‘inestimable Blessing of Liberty’.

For early-modern Englishmen, this unique system of law and liberty, arising from what the poet Samuel Daniel referred to in 1603 as ‘the wonderful architecture of this state’,5 was the very essence of their national identity, what has been called ‘the distinguishing characteristic of Englishness’. More than its Protestantism, which many other European polities shared, England’s status, in John Milton’s phrase, as ‘the mansion house of liberty’, whose people had been ‘ever famous, and foremost in the achievements of liberty’, had by the middle of the seventeenth century come to be identified as the core of ‘England’s peculiarity’.

Writing in an age when every other major European state, except for the Netherlands, was slipping into absolutism and when England’s own Stuart kings were trying to extend the prerogatives of the Crown at the expense of Parliament, these early-seventeenth-century legal writers were anxious to erect legal and constitutional restraints against arbitrary extensions of royal power. Accordingly, they invented the tradition of an ‘ancient’ English constitution, antecedent to and finding expression through the common law, which could justify an expanded governmental role by Parliament, acting to protect the people against the Crown.2 Though frequently ignored or violated since the Norman Conquest, this ancient constitution, Coke and his colleagues contended, provided the context for legal government in England. Composed of a variety of maxims, precedents, and principles which they traced back through Magna Carta to the ancient Saxon era, it at once served as the foundation for all governmental authority in England; confined the scope of Crown discretion, or ‘will’, within the limits of fundamental, natural law; and, in particular, prevented the Crown from governing without Parliament.

As early as the late fifteenth century, many contemporary observers, both English and foreign, agreed that the English people’s unique system of law and (p.209) liberty was what principally distinguished them from all other people on the face of the globe. The proud boast of the English was that through a variety of conquests and upheavals they, unlike most other Europeans, had retained their identity as a free people by safeguarding their liberty through their laws. This boast found sophisticated expression in the English tradition of political discourse which emphasized the role of law as a restraint upon the Crown. By law, the articulators of this jurisprudential tradition meant not only statutory law as formulated by Parliament but, more particularly, the common law, that complex bundle of customs and judicial decisions which was the result of centuries of the working of the English legal system. Presumably embodying the collective wisdom of the ages, the common law, in their view, was the chief guarantor of the Englishman’s celebrated right to security of life, liberty, and property through such devices as trial by jury, habeas corpus, due process of law, and representative government.

As used in this chapter, the concept of national or Imperial identity refers to the intellectual constructs by which leaders of opinion seek to identify the attributes that distinguish the people of one nation or empire from another. Invariably self-serving for the groups whose representatives articulate them, these constructs tend to be highly positive exercises in the assertion of national superiority; homogenizing; reinforcive of existing social, political, gender, ethnic, and racial hierarchies; insensitive to contradictions between them and the structure and operation of the political society they allegedly describe; and inattentive to alternative readings of the national peculiarity. Although this chapter gives some attention to some of those alternative readings, limitations of space dictate that it be principally an exercise in the recovery of the dominant discourse of English and British national and Imperial identity.

While Protestantism, social openness, intellectual and scientific achievement, and a prosperity based upon trade were all important components of that identity, liberty, under an English system of law and government, composed its principal foundation, and while, between the Elizabethan era and the American Revolution, the acquisition of colonies and other outposts would become increasingly significant in defining what it meant to be English or (after the union with Scotland in 1707) British, liberty was also the single most important element in defining a larger Imperial identity for Britain and the British Empire.

Women may not have been able to vote, but even this needs to be seen in context: in the eighteenth century the overwhelming majority of the population could not vote. In terms of electoral politics between 1754 and 1790, hereditary peers could not vote, and overall, only 17.2 per cent of adult males, or 4 per cent of the total population of England and Wales, (p.32) were enfranchised.28 Elections were not yet common; contested elections even less so; consequently, suffrage was not yet the kind of issue for Eighteenth-century women that it would become for women a hundred years later. They did occasionally express a desire for greater political involvement, but these comments were rare and situation-specific, arising from strong feelings about certain political measures or men.

While concerns about sex, politics, and corruption were not new, the removal of women and their influence (especially aristocratic women) came to be seen as essential to reforming the political order and making it more manly and pure from the 1760s onwards.20 These claims emerged in conjunction with rising anxieties about aristocratic vice and more general concerns about sexual and political corruption. Socially, they translated into a desire for ever tighter controls over female sexuality and a more strictly domestic role for women; politically, they emerged as demands for a more accountable, respectable form of politics.21 They were given extra emphasis by the conservative response to the French Revolution and the negative perceptions of French women's part therein. It could be argued that they were enshrined in the Reform Act of 1832, which made it illegal for women to vote.22 However, the nineteenth century did not put paid to women's political involvement: among at least the upper echelons of the political elite, family-based electoral involvement continued, as did women's engagement in patronage, although the nature of patronage itself changed.23 Similarly, women continued to use the social arena for political ends.24 Indeed, even in nineteenth-century fiction we find women who would have been readily recognized by their eighteenthcentury forebears: Anthony Trollope's mid-nineteenth-century characters of Lady Laura Kennedy, Lady Glencora Palliser, and Madame Max (p.31) Goesler, and Oscar Wilde's late nineteenth-century political women, Lady Chiltern and Lady Cheveley, for instance.

The most effective weapon wielded by critics of women's political involvement was sexual slander. Given the importance of female reputation at the time, they sought to dissuade women who were perceived to be a threat from future political involvement by charging them with immodesty, dubbing their activities unladylike or, even worse, sexualizing their involvement and calling into question their chastity or comparing them to prostitutes.

Problems arose whenever women stepped outside this familial framework (or were deemed to have done so). When a woman came to be seen as a political player in her own right, and especially if she proved herself to be a better politician than the men she was competing against, as did Lady Susan Keck in Oxfordshire in 1754 and the duchess of Devonshire in Westminster in 1784, she became a threat to the status quo. Not only did such women challenge one of the fundamental building-blocks of society—the ‘natural’ balance of power between men and women—but they also called into question the basis upon which the solely male political order was constituted. Women were, after all, barred from full citizenship on the grounds of entrenched gendered beliefs about their sexuality and emotionality, their ‘natural’ political incompetence—their passivity and dependence, and their allegedly limited intellectual, moral, and physical capabilities.

Thus, despite the fact that the most important fiction which underpinned the English polity in the eighteenth century was that it was male and that politics was men's business,10 even extensive female political participation could be rationalized as non–threatening to the polity and conveniently subsumed into male politics if it could be interpreted in the light of women's traditional roles and placed in a familial paradigm. As long as women's political activities could be interpreted as supportive of and/or subordinate to men's (preferably to a family member or members), or carried out in the line of duty to family or the family interest, they were largely taken for granted. Even women who were recognized as political figures in their own localities or by the administration in London could be incorporated into the imagined political order as long as their activities could be interpreted according to the familial model.

On the whole, women's main concerns were with the breadand-butter of political life: they dealt with local people and concerns, especially if they remained in the country while their menfolk went to parliament; they handled requests for patronage; and they participated in whatever politicized socializing was suited to their status and their family's political position. Canvassing or other forms of public electoral involvement were an occasional addition to these more everyday political activities.

It was still predominantly a world of family interests, where parliamentary seats and even some places in government were seen as forms of property to be passed down through generations. As women were prevented by custom from voting, holding most patronage appointments, or sitting in the Lords, even if they were peeresses in their own rights, it is hardly surprising that their interest and involvement in politics were chiefly familial and were based in their traditional roles as sister, wife, mother, and widow/matriarch. Conduct-books encouraged young women to dedicate themselves to lives of family duty and the advancement of family interests. A good wife was repeatedly advised to adapt her personal interests to suit those of her husband and his family, and be prepared to manage his fortune, household, and family interests if he was ‘neglectful’.9 For a widow, especially one who was left to preserve an estate and (p.26) family interest for a son who was still a minor, this could become an obligation.

Despite the amorphousness of eighteenth-century politics and the lack of a firm party structure, the system worked because the politics of influence and interest throve in a climate that was distinguished by personal relationships, complex networks of connexions, and extensive webs of obligation. Its very fluidity provided women with various points of access and opportunities for involvement. Much of the networking, solicitation, manoeuvring, and negotiation of politics—be it about policy or patronage, factional alliances, or election outcomes—took place in social situations that included women.8 Moreover, a good deal of what could not be done in person was done by letter—and eighteenth-century women could be tireless and effective correspondents.

Their involvement was more widespread and readily acknowledged by contemporaries than previously imagined. Even when women's place in the polity is looked at narrowly through their electoral status and privileges, these tensions are revealed. Although the ideal polity was wholly male, the real polity could not be: factors ranging from variations in the franchise through accidents of birth and high male mortality ensured that there were always some eighteenth-century women who were undeniably political actors and challenged this fiction. Some women, from the level of freeholders up, had recognized electoral privileges—the right to make their husbands into voters, or even the legal right to vote (and thus the right to choose men to vote in their steads). These privileges were only finally removed with municipal corporation reform in 1835.

Her admonitions are illuminating because, consciously or unconsciously, she identifies fundamental themes, ambiguities, and inconsistencies around the involvement of the eighteenth-century female political elite in English political life. She reveals that politicization was inescapable for the women of the political elite. As an integral part of the web of personal, familial and/or factional networks, or connexions, that comprised political society, they were expected to be politically aware and involved.

Like Lady Anson, the duchess of Bedford was by no means confined to the role of adviser, but for many women such a role may have been ideal. A valued political adviser was given access to the political world and her input was generally acknowledged and respected by political men. The role legitimated women's political awareness and interest, provided them with an acceptable way of expressing political opinions, and allowed them to affect political decisions with little risk to reputation. As advisers, they could have significant political influence, but since their participation remained indirect and was usually carried out privately and in person, others could only guess at the extent of their power; furthermore, they could not be held publicly accountable for political decisions.

Although the female reformers of Manchester were prepared to appeal to the common familial sentiments that potentially united women of all classes, within their own communities they placed burgeoning class priorities over gender claims to political equality. Within two decades, as women’s experience of political organization matured, this choice would become tension-fraught and problematic.113 It was not so in 1819 because women’s political activism on the platform was only beginning, and because the political conjuncture of the post-Napoleonic era demanded class solidarity. At a time when political space for reform was such a contentious issue, circumscribed by law and an increasingly visible military presence, female intervention in a traditional idiom was a necessary strategy to reinvigorate radicalism, to disarm critics, and to impress upon the public the community-based nature of popular grievances. How this strategy played itself out in 1820, when Queen Caroline returned to England to reclaim her regal rights, is a subject to which we now turn.

Even so, the women of the first political societies continued to espouse what Temma Kaplan has called a ‘female consciousness’, one that drew upon the conventional division of labour by gender and privileged women’s traditional role as the preservers of life.111 In staking out their new place within the mass platform, women did not stress their role as independent producers within the factory system, nor their right to independent political action as citizens, although this was certainly mooted at the time. Rather they stressed their role as mothers and daughters of families immiserated by burdensome taxes, oppressive laws that outlawed collective bargaining, inflated prices, and a political system that rechannelled resources to an idle and select minority.

Women’s activism was of vital importance to radical education and reproduction, to the creation and dissemination of a radical political culture. It drew cannily upon evangelical notions about the regenerative power of women as mothers, unsettling the political conservatism that frequently accompanied domestic ideology. Female participation was especially critical to the expansion of radical political space, which had received a series of setbacks through legislative repression and loyalist propaganda. At the time that the female political societies were formed, radicals were attempting to revive the mass platform after a period of prohibition, well aware that the government might re-enact the Seditious Meetings Act of 1817 which had severely restricted open-air meetings by working people.97 To counter this possibility, radicals encouraged women to march in their parades and carry their political banners in order to underscore the respectability of the platform, its disavowal of mob or insurgent activity. In defending this strategy, radicals even drew an analogy between this sort of involvement and that of the élite women who had presented the colours to the volunteer regiments during the French wars.98 From this perspective, radical women were represented as the moral force of a different kind of female patriotism.

Even so, female reformers never pushed this demand as part of their platform. Their aim was rather to co-operate with the ‘different classes of workmen’ in seeking the redress of their industrial grievances through political means, most notably through annual parliaments, universal (male) suffrage, and a secret ballot. Since those grievances were thought to stem principally from Old Corruption, they also pledged themselves to educate their sons and daughters to a knowledge of their ‘natural and inalienable rights’ so that they could form ‘just and correct notions of those legalized banditti of plunderers who now rob their parents of more than half the produce of their labour’.94 As James Epstein has emphasized, this was a programme of moral support for popular radicalism that drew its ‘legitimacy from traditional claims for motherhood, not citizenship’.