The History of Crime

1In the 1970s a new generation of social historians rose to prominence in Britain, scholars not content with writing G. M. Trevelyan’s “history with the politics left out”, and, in fact, eager to put some of the politics back in.1 The aim was to reconnect the grand narratives of political life at the centre with the microcosms of social activity in the peripheries, not merely to give the neglected masses their due, but to shed new light on old problems of historical change. The synergy of sociology and history had some revolutionary outcomes. No longer could the English Civil War be seen just as a constitutional squabble between Crown and parliament, or court against country: it was revealed as a war of competing religious and cultural values simmering at all social levels in obscure rural communities at least a generation before anyone took up arms. Now, the world we had lost would have to be regained piece by piece until a coherent picture emerged. And so the “new social history” presented an array of topics for young researchers to make their own: demography and economy, popular religion, literacy and education, the family and childhood, women and gender, poverty and poor relief, and so on.2 It was from this division of labour that today’s history of crime and law in early modern England was born.

2A series of books and articles appeared which established a fresh awareness of the administration of justice.3 A popular legal culture had developed in England from the time of the Tudors, as relatively autonomous villagers were compelled to recognize the supremacy of royal law, especially by using the courts to settle differences. The state used the gallows as a platform from which to broadcast its power, and derived ideologically-potent symbols from the punishment of horror crimes, even though such crimes were rare. The most common offence was shown to be petty larceny, but all manner of sins, it seemed, also belonged in the equation; a modern aggregated and administrative definition of "crime" would not do. Viewing the law in practice was a revelation. In line with new social historical objectives, research into criminal justice opened up a broader world of relationships in local communities, demonstrating that government was concerned not merely with the statutory power of the crown-in-parliament, but the internal dynamics of England’s nine thousand parishes. The strengthening of the state through the law was an impressive achievement by Henry VIII and his successors; but success depended on just how the law was received and used in the darker corners of the land. This was especially significant in England because of its common law traditions: unpaid amateurism among law officers, together with accusatory justice which enshrined the right of trial by one’s peers and placed the onus on individuals to initiate prosecutions. Royal mercy was a very visible indication that criminal justice was discretionary; but far more discretion was actually shown at the earliest stages of the legal process, mostly unrecorded in informal decisions about whether or not to conform by going to law to rectify disputes and disorder.4

The History of Mentalities

3From the 1980s, a succession of theses and monographs based on regional archives assembled something like a national picture of the incidence of early modern crime.5 And yet, however valuable in itself, this wider coverage did not contribute much to the deeper meaning of legal prosecution. Meanwhile, such deeper meanings had become the key objective towards which many cultural historians of continental Europe were committed. Drawing on the traditions of the Annales, and inspired by social anthropological models, the likes of Emmanuel Ladurie, Carlo Ginzburg and Robert Darnton were exploiting legal records not to further knowledge of crime and the law as such, but to recover the lost mental worlds of their more obscure and inarticulate ancestors, attempting to break what Darnton called “the vast silence that has swallowed up most of mankind’s thinking.”6

4Crucially, the historians of mentalities avoided present-centred assumptions and breezy generalizations about early modern thinking. Mentalities were subtle and elusive, embracing ideas, values, sensibilities, identities, passions, emotions, moods and anxieties – innate human characteristics worthy of historical study because they are subject to change over time.7 And yet, it was insisted, mentalities did not float vaguely and freely in the air, but were solidly rooted in practical contexts, routines and actions – what Jacques Le Goff has termed “the everyday automatisms of behaviour”, and G. E. R. Lloyd, in his seminal study of mentalities, “social contexts of communication.”8 In historical terms, a mind which did not shape an utterance or move a hand was not a mind about which one could confidently say very much at all. There were methodological problems, especially regarding the reliability of legal archives which, as records made by the dominant party in a power relationship, did not necessarily represent plebeian voices with accuracy and authenticity.9 But, however muted or distorted, there were voices there, and it became a firm belief that wherever there were voices there were mentalities to be extracted.

5Historians of England did not rush to make the study of mentalities their own. In the first place, the illuminating achievements of the new social historians perhaps inhibited the feeling that history needed to be taken in another direction. Secondly, there was a degree of suspicion about this ill-defined, rather ethereal concept, and most British historians preferred to keep l’histoire des mentalités at arm’s length in its safely untranslated form.10 The third reason was perhaps the most understandable, namely that the vast detailed dossiers bequeathed to posterity by continental inquisitorial procedures did not exist for England, and so the scope for the microhistorical reconstruction of individual cases was strictly limited. There would be no Montaillou, no Cheese and the Worms, no Great Cat Massacre.11 The nearest English equivalent – court depositions (informations and examinations) – did offer qualitative evidence, but were more often used to illustrate the quantitative profiles of crime, the archival sources for which – mainly terse and formulaic indictments – were more plentiful and complete in series. Depositions (many of which, as unofficial records, only survived by chance) had little more than an ornamental use for historians, and did not attract close analysis as distinctive sources in their own right.

6I myself set out to be a cultural historian as much as a new social historian, having been more inspired by anthropology than by sociology. This meant taking a qualitative rather than the more usual quantitative approach to crime. An early contention was that we understood how the criminal process worked but we did not always know why, so I began investigating attitudes to crime.12 My modus operandi was not to anatomize yet another county archive, nor to focus on some putative national problem termed “crime”, towards which attitudes might or might not be recovered. As early research had established, English men and women did not think in those terms in the seventeenth century; they saw crimes in the plural, and not just as breaches of the law but as infractions of communal morality.13 I decided to focus, therefore, on just three crimes – witchcraft, murder and coining – and to look at them in great detail. Before long I realised that this approach might improve my understanding not just of crime, nor even the social relationships which determined outcomes in the legal process. Rather, inspired by the continental research, I hoped to glean enough from witnesses’ depositions to discover something new about mentalities.

7Whether I was successful is for others to judge, but I did at least feel that these were voices which became more audible if one drew in closely enough, and that they had interesting things to say. Interesting and intelligent and often individual, even though the dominant influence was the village. As Miranda Chaytor has argued in her study of rape cases, “depositions in this predominantly oral culture often drew on ready-made stories or fragments of stories – the formulaic but adaptable anecdote, the memorable, serviceable image or phrase.”14 This does not make these statements strikingly original, but it does at least mean that speakers are better represented in these documents than has sometimes been thought. Even if the forms of expression are hackneyed, they were still deployed on behalf of the witness, not on behalf of a magistrate or some other socially-elite officer of the law.

Listening to Witnesses

8Using depositions shifts the focus to the pre-trial process, and away from an environment where truth was most likely to have been manipulated by the powerful in their own interests. Under legislation from the 1550s, untrained justices of the peace (JPs) were required to record evidence, bind witnesses, and then forward cases to the next assizes. Informal, unfettered by convention, and unscrutinized by higher authority, the circumstances of this process varied; most significantly, the influence of discretionary factors determined by social relationships and reputations was considerable.15 A JP may have had a vested interest due to property in the case of a theft, or some more specific animosity towards a witness or suspect. Yet more often, it seems, he was concerned only to uphold order. To this end, his purpose was to gather such evidence as would be material in proving a case, and that meant letting people speak and noting down what they said.

9And what one finds is that someone was usually thinking carefully about how to tell a coherent story. There are reasons to believe, moreover, that this someone was not the (largely indifferent) JP, but the (very purposeful) people responsible for the successful pursuit of the prosecution. Prosecutions were not embarked upon lightly, even in serious cases when villagers were technically obliged to report an offence. There was always a risk, it was felt, that the case might be lost and reputations damaged (or a countersuit for libel incurred). Hence measures taken to reduce this risk – mainly deliberate collusion to get a story straight – are not only likely to have taken place: one would almost expect them.

10Secret murder illustrates the point well. Most homicides were the fatal outcomes of public assaults to which many people were witnesses, and the conviction rate was high. But cold, calculated murder was far more difficult to prove, especially if the means of killing left no visible wounds – as was usually the case with poisoning, infanticide and witchcraft. In the close confines of the village community, of course, the identity of the killer would often be strongly suspected. A clear motive, a visibly uneasy conscience, and similar facts and clues saw to that. But whether a JP would be persuaded that the case was worth making against an individual, likewise an impassive grand jury at the assizes, was another matter. In an age before reliable forensic medicine and the routine application of a law of evidence, when most people still lived in rural parishes, the power of a story to represent the collective opinion and interests of the community was the principal means to advance a cause at law from the beginning to the end. And so the stories had to be good. In a sense, these are fictions in the archives, and the debt here to Natalie Zemon Davis will be self-evident. As she suggested, truths made at law might be “moral truths” in that they were not objective disclosures of fact but narratives seeking to fulfil peasant ambitions. And for that reason, conversely, they are an excellent way for historians to glimpse mentalities.16

11Having said that forensic medicine was primitive in seventeenth-century England (although Roman law procedures ensured it was more advanced on the continent), when a corpse was discovered people did not just rush to the nearest JP and start talking. There were methods and procedures, and those with a vested interest in maintaining order in their community were not afraid to get stuck in. In 1636, at Sutton in the Isle of Ely, suspicions about the disappearance of John Bonham junior had been smouldering for nine years when a pot of bones was found behind his parents’ house. A neighbour summoned the parish who delivered the bones to the JP, then displayed the pot which, a woman deposed, “it beinge of an extraordinarie fashion it putt her in minde that shee had seene that or the like pott in the howse of John Bonham of Sutton standinge upon his Cubbords heade about nine years agoe the last Easter” – exactly the time the Bonhams’ son had last been seen.17 Women left a thigh bone at the Bonhams’ door, whereafter the suspects’ attempt to locate the rest of the skeleton – coupled with the fact that John Bonham’s sister smashed the pot – only heightened suspicions. The JP committed Bonham to gaol and bound twelve witnesses to give evidence. One noted that the shallowness of the grave indicated the speed with which it had been dug, and the gravedigger speculated that the bones were not old. One of the constables was ordered to search the parish register which showed the boy had been christened in May 1616, meaning he was eleven when he disappeared – a discovery which shaped all future testimony. Bridget Bonham protested that the bone left at her door was that of an adult, similar in length to her own thigh, but because it had already matched the leg of an eleven-year old child, the constable then swore that all the bones were proportionate to those of an eleven year-old child. Everything was made to tie in.18

12The close relationship between suspicions, material evidence, and the testimony which united the two, is further demonstrated by ordeals. Ordeals had their origins in Germanic law and in pagan folk religion, and although mostly eradicated by time of the Reformation, the probative function they offered meant they lingered on unofficially. In a crude inversion of the ritual of baptism, country folk swam suspected witches in ponds, the idea being that the water would reject them; sometimes a set of outsized scales were rigged up and the suspect weighed against a bible. Another superstitious practice was corpse-touching. The suspect, or even the whole parish, would be made to touch the body of a murder victim, the belief being that the victim’s soul (or God’s providence) would cause it to bleed afresh. By these means, the guilty could be brought to justice even though there were no first-hand witnesses. The stories abound, and describe blood pouring in the most graphic and bizarre manner. Historical relativism aside, they defy belief and we could conclude that the witnesses were lying, and that their stories were perjurious fabrications in the absence of anything more persuasive. Yet this where present-centred value-judgements slip into the reconstructive exercise, but where historians of mentalities pounce, sensing the opportunity to recover a particular way of thinking by identifying deeper inner meanings.

13Accounts of corpse-touching should be seen less as a process by which murderers were discovered than as a means of demonstrating prior convictions. In 1695, women at Nether Kellett in Lancashire – obviously amateurs – were asked to examine the corpse of Mary Shaw and make report of what they had seen. They deposed that she had sustained “on the side of her belly [...] a wound as if it had been pressed down by a womans Elbow”. This statement surely amounts to an indirect accusation, not impartial observation; how else could the women have perceived that the bruise on Mary Shaw’s stomach had been caused by an elbow – still less the elbow of a woman – unless they wished to steer the case towards a specific individual? The woman they had in mind was Margaret Slatter, who crucially they did not name at this stage, but whose scuffle with Shaw had been witnessed shortly before her death and for whom corroborating witnesses were forthcoming. This would have been a cunning enough ploy, but the case against Slatter was driven home by subsequent events. Standing nervously beside the coffin, and with all eyes upon her, the suspected woman “was ordered by the people then present to lay her hand upon the said Mary Shaw’s fface upon which doing the said Mary Shaw bled att the right nostrill.”19

14Clearly, certain members of the community had already decided how Mary Shaw had died and needed only a theatrical arena in which to articulate symbolically what they knew. The function of such procedures may have been symbolic, but this was a society where symbols were extremely potent. Indeed, differences in the status and meaning of symbols are regarded as stock-in-trade for the cultural historian and historian of mentalities. They are a point of access and took many subtle forms.20 Murder witnesses sometimes threw in experiences of ghosts, dreams and other arresting omens; they learned to emphasize death-bed utterances, which had a strong evidentiary status under the common law; and they were given to exaggerating physical symptoms of poisoning, the need for which today would be obviated by toxicological analysis. Whatever the information or means of its imparting, it was invariably fitted into a persuasive narrative structure.

15The point is clear in the following tale. In 1677 Ann Oatiff and a neighbour of Over in Cambridgeshire testified that when they asked after Thomas Cowell’s health, he had replied that he had never been worse for John Ilgarr had poisoned his beer. Later, Cowell’s wife deposed that he had testified on his death-bed that Ilgarr “had kild him”, in response to which she had asked “how had hee kild him, did hee stricke thee, and hee s [ai] d noe, But said that hee had Poisoned him”. In itself, the question was quite pointless; she already knew the answer because she had testified that his body was swollen with poison, and that he had taken an antidote “w [hi] ch hee had bought of a Mountebanck”. Yet it was essential that he reiterated his convictions in extremis, and with embellishments. He said he had seen Ilgarr put something “white Like Chalke” in his beer, which, if true, makes one wonder why he drank it. Widow Oatiff further deposed that after Cowell was dead she helped to lay out the corpse, “and upon search of ye body she does app [re] hend yt hee did not dye a naturall death for that [his] members were extraordinary swel [le] d and very black.”21

Mentalities from Crime

16Approaching the history of crime in this way enables us to understand mentalities not just as abstracts, but in action. But it can also help to explain long-term changes in thinking, to identify transitions towards more objective ways of defining and insisting upon truth. The study of testimony in witchcraft cases serves this purpose well. An understanding of pre-trial procedure helps to explain not only the internal dynamics of prosecutions, but also sheds light on why trials had declined by 1700. A key factor is that witnesses’ narrative strategies lost their persuasive power, in part a consequence of higher standards of evidence being observed for all offences. Increasingly, successful witchcraft prosecutions were backed by physical evidence, but even this strategy wore thin. The verdict against Joan Buts, a defendant at the Surrey assizes in 1682, was met with “the great amazement of some who thought the evidence sufficient to have found her guilty, yet others who consider the great difficulty in proving a witch, thought the jury could do no less than acquit her”. Witnesses were therefore put on their mettle. At the trial of Jane Wenham in 1712, the clerk refused to frame an indictment for anything other than conversing with a diabolic spirit in the shape of a cat, leading canny witnesses to exaggerate this minor aspect of the case, rather than more substantive grievances which they knew to be legally redundant.22

17A second factor relating to long-term change is that shared understandings between witnesses and men in authority declined as the cohesiveness of traditional communities waned. Certainly, feelings of cultural difference and the cultivation of manners among England’s local governers preceded sincere and universal contempt for their superstitious beliefs. In fact, many actually preserved a cautious credulity in witchcraft and other beliefs. Mass migration to the towns which lured the poor in need of work, and the rich – including absentee justices of the peace – in search of luxury, may have diffused the tensions behind witchcraft accusations, but it also diminished the means by which the authorities had for generations preserved their sensitivity to the demands of their inferior neighbours. Symbolic testimony therefore lost its potency, marking a significant shift in mentalities.

18To conclude, a qualitative approach to the history of crime reveals dimensions lacking in the existing historiography by demanding that we consider a world of meanings which are not immediately apparent from the primary sources. The statistics found in conventional histories of crime are of great importance, but alone they are not sufficient to provide a deep understanding of either crime or prosecution. But there is even more to be gained here if one is inclined to ask the right questions. “The value of criminal records for history” according to Edward Muir and Guido Ruggiero, “is not so much what they uncover about a particular crime as what they reveal about otherwise invisible or opaque realms of human experience.”23 This neatly sums up the argument behind this paper. I believe that public and private reactions to particular offences can reveal how our ancestors perceived themselves, their social environment and their universe, and, conversely, how these perceptions both reflected and shaped popular beliefs and behaviour over time.

19We have long had a history from above, and, over the last thirty years, to this a politicized history from below has been added. Now, to further our understanding of ourselves in time, we need to develop a history from within – a history of English mentalities. Historians need to ask how life experiences were perceived, and how norms, attitudes, beliefs and ideas were articulated, affirmed and adapted within the real-life contexts of household, neighbourhood, community and wider society. And for this, the administration of justice – “the very quintessence of the activities that bring people together” – should be an inviting pathway.24 The courtroom or, earlier in the legal process, the examining JP’s parlour, were not necessarily typical locii of social interaction for most people, but they did provide settings for the only regular form of engagement between governors and governed for which we have extensive documentary evidence. And for that reason at least, historians need to keep looking there for signs of minds at work in the past.