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Law and History Review
ARTICLE: Managing the Gallows: The Bank of England and the Death Penalty, 1797-1821
25 Law & Hist. Rev. 241
Over thirty years ago Douglas Hay began his influential essay, "Property, Authority and the Criminal Law," with the unsettling claim that "the rulers of eighteenth-century England cherished the death sentence." He went on to offer a major reinterpretation of eighteenth-century justice, one with wide-ranging implications for how we understand English society in that period. The gallows, Hay argues, was meant to inspire terror. The passage of a large number of capital statutes spoke of the resolve of the ruling class to defend its property with the most extreme of measures. Yet the ultimate sanction was used sparingly. Hay's most important insight was to note the role of discretion in the operation of eighteenth-century justice. The choice not to impose death was as important as the occasions when offenders died. The elite deftly exploited these opportunities. The mercy dispensed by the Crown not only presented a more benign image of authority, it also taught the lessons of patronage and deference that instructed the lower orders in the proper attitude to take toward their social superiors. Thus justice worked more powerfully than religion to create legitimacy for the existing order. It was tightly controlled by the landed elite, and it was subtly employed by the rich to preserve a dominance that was only weakly defended by soldiers or police. "It was," Hay concludes, "a society with a bloody penal code, an astute ruling class who manipulated it to their advantage, and a people schooled in the lessons of Justice, ...
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