Criminal injustice

I’ve been researching the justice system of the late 18th and early 19th century, It’s a fascinating period – a time of change in attitudes to crime and legal remedies for crime, as in so much else.

Our modern view is that one law should apply to all. It doesn’t always work. Money buys better lawyers, for a start. But the basic principle is that we have laws that lay down the crime and the range of punishments, and judges who look at the circumstances and apply penalties without fear or favour.

imageThe pre-19th century situation in England was far, far different.

One of the major plot lines in Farewell to Kindness is the hero’s hunt for his family’s killers. In the course of the book, I reach a point where I want to get some of the minor players out of the way, and I hit on the idea of having them caught with contraband goods, arrested, and incarcerated.

I figured they’d be ripe for a little bit of pressure to make them give up some information about the real villain.

Ooops. 21st century blinkers on.

While my characters were having some money troubles (caused by my hero working behind the scenes), they were still wealthy merchants with powerful connections. And even poor peasants, as long as they had influence behind them (such as the local squire) could often slide gently out from under the attentions of the law in the system as it was then. Wealthy merchants? No problem.

So when the Excise or Customs officers (or maybe both) and the local representatives of the law (probably retainers of the local Justice of the Peace, but possibly part-time or full-time night watchmen appointed by the local City Council – no central police force yet) turned up at the door, the conversation would have gone something like this:

“What do you lot want? I’m about to have my dinner.”

“Now look here, Mr XX. Your warehouse down on the wharf is full of stolen and smuggled goods.”

“My goodness, I wonder how that happened.”

“You knew all about it. We have evidence, and a deposition from a real Earl. And we have to listen to real Earls, because they’re important.”

“Bother. You’ve got me there.”

“Yes, it’s a fair cop. So consider yourself arrested.”

“Really? How about if I just give you the goods?”

“Excellent idea. The sale of those goods should fetch a pretty penny.”

“I’ll even loan you a cart to take it all away.”

“Thank you, Mr XX. Have a nice dinner.”

Here’s a neat summary of the way the system worked. Here’s part of what the writer says about the change that was happening.

The key issue was the transition from (to use Foucault’s distinction) sovereignty to government: from a world in which crime was simply a wrong, a personal interaction between individuals or individuals and their superiors, to one in which crime was disruption, in which an offence against the criminal law was a disruption of the public peace and of the effective working of society. This meant a shift from the centrality of the court (as the place where disputants would confront one another) with no implications for the working of society, to the centrality of police and crime detection (as minimising disruption to the working of society).

To the mind of the law enforcers of the time I’m writing about, contraband goods offended those from whom the goods were stolen, and repaying those people (with smuggled goods, the offence was against the King) set the balance right. And if a little of the payment stuck to the hands of those enforcing the law, that was only fair, since they’d done the work.

So I need to go back to those scenes and rewrite them. But I have an idea!

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