The law & economics of private prosecutions in industrial revolution England

Classic papers in this tradition, such as Samuelson (1954) argued that private provision of a pure public good like a lighthouse was impossible.

See in particular Reith (1943, 2–3) and Critchley (1967, 27). Hay and Snyder (1989) comment: ‘[m]uch of the older police history, in short, was a classic instance of the historical fallacy of presentism, the search for the origins of a present institution using modern definitions of organization and function’ (Hay and Snyder 1989, 5–6). Philips and Storch (1999) have shown that many of the criticisms of lazy or incompetent village constables come straight out of the literature produced by those advocating and justifying reforms in the 1830s and 1840s. They observe ‘[s]ince regular police forces have long been the norm in the West, it is hard to imagine a workable society in which this was not the case. The natural tendency is to think that the establishment of paid, embodied forces was sensible, obvious and inevitable, and that people who resisted or argued against it were foolish, reactionary, wicked or all three’ (Philips and Storch 1999, 6).

Coase (1974), for example, showed that lighthouses were at least partially privately funded until the mid-nineteenth century thereby undercutting the claims of Samuelson and opening up the question of private provision of public goods such as law enforcement for debate. More recent work emphasizes the continuing involvement of the British state in lighthouse provision (Bertrand 2006; Block and Barnett 2009; Carnis forthcoming). For an analysis of the conditions under which private provision is efficient see Lindsay and Dougan (2012).

In fact these arguments can be dated back to an older literature (see, especially, de Molinari 1849; Rothbard 1973). But the recent empirical and game-theoretic research examining how self-enforcing contracts can support trade in the absence of government law enforcement began with the cited works. Other important contributions include Benson (1998) and Barnett (2000). This paper focuses exclusively on private forms of law enforcement and ignore other issues such as competing sources of law.

Friedman (1979) studied private law enforcement in medieval Iceland. Posner (1980) considered how a range of legal questions are settled in preliterate societies. Benson (1994) examined the Anglo-Saxon legal system. Leeson (2007a) showed how order was maintained on pirate ships, despite the fact that these ships were run by criminals beyond recourse of the law. Leeson (2009) considers how a decentralized legal system emerged to govern disputes between “reivers” along the Anglo-Scottish border in the late middle ages. Skarbek (2010, 2012) studies how prison gangs provide governance.

However, see Leeson (2008a) for a discussion of forms of spontaneous order that do not rely on the Folk Theorem to enforce cooperation.

Most example of private law enforcement come from small-scale societies at low levels of economic development. Examples include modern Somalia (see Leeson 2007b) or the hill people of Zomia studied by Scott (2009).

One important paper that does tackle the scaleability problem is Leeson (2008b) who demonstrates how, in a large-scale society, trade can still take place in the absence of third-party enforcement if individuals, who do not known one another and are socially distant, invest in signals that reduce this social distance. These investments screen out individuals who are likely to cheat and ensure that mutually beneficial trades take place. This shows how trade can still take place in a large-scale society, but does not directly address the subject of private law enforcement.

Historians have discussed these associations in some detail; notably Schubert (1981), King (1989) and Philips (1989). Davies (2002) summarizes the existing historical research on the rise of a professional police force and argues that at the time associations for the prosecutions of felons provided a genuine private alternative to public law enforcement. Mokyr (2008, 2009) discusses the importance of private-order organizations and social norms that encouraged honesty and fair dealing in producing an institutional backdrop conducive to the Industrial Revolution.

Absolutist rulers introduced across continental Europe during the sixteenth and seventeenth centuries. For details on the French system, see Emsley (2007). Scotland also employed a public prosecutor and a police force.

The set of legal institutions that characterized eighteenth century England emerged during the Middle Ages as the Norman kings of England imposed their own system of royal courts and ‘common law’ onto a preexisting set of earlier, decentralized, Anglo-Saxon legal institutions (Pollack and Maitland 1895; Benson 1994; Klerman 2004; Stringham and Zywicki 2011).

Constables were ‘parish households’ who took turns as ‘volunteers’. As they were unpaid, they typically did little more than ‘assist the private citizen who was the victim of a theft or other crime and who himself paid for the prosecution and largely organized it’ (Hay 1980, 48). Even in the murder cases, the state typically refused to pay for information leading to a conviction. The notable exception to this rule were the Ratcliffe highway murders in 1811 which shocked the entire country and led to a series of Parliamentary committees that looked into police reform. James and Critchley (1971, 46) comment that ‘[i]t was common enough for the Government to offer rewards for information that led to the conviction of an offender against the public good, but requests relating to crimes against individuals, even murder, were invariably refused’.

See Beattie (1974), Sharpe (1983), and Philips and Storch (1999).

Rough music—often the banging of tin kettles, tea trays, and drain pipes—was used to humiliate individuals who had committed offenses that were socially disapproved of, but not seen as worthy of an indictment (see Conley 1991). Similarly, Taylor observes that ‘[f]ace-to-face communities and informal sanctions, legitimized in part by religion and custom, meant that the legal system was often used as a last resort. The courts, dominated by amateurs, dealt with the cases that came before them with breathtaking rapidity and operated in a highly personalized manner’ (Taylor 1998, 2). Stang riding refers to the practice of ritually humiliating individuals who violated a society’s moral code by parading them backwards on a donkey or horse.

The disparity between recorded and actual crime is always a problem with criminal statistics but it is particularly acute in early nineteenth century England where no estimates of offenses were maintained until 1857. Hence the actual number of crimes—‘the dark figure’—is itself unknowable. The only nation-wide criminal statistics that we have for the first part of the nineteenth century refer to committals. These statistics were interpreted by most contemporaries as representing a crime wave (see Gatrell 1972; Philips 1977; Emsley 1996; Taylor 1998). As Philips and Storch (1999, 44–45) note, the committal statistics ‘cannot prove that ‘crime’ in Wiltshire or Herefordshire was increasing more rapidly than in Lancashire or Durham, but [they] do show why we may forgive rural gentlemen for thinking that they had a big problem on their hands’.

Violent crime, however, continued to decline during this period (see Beattie 1974).

Colquhoun (1803, 6) argued that ‘[t]he progressive, and (of late years) the very rapid increase of its Trade, and the consequent influx of Wealth, without such checks as regularly applied are necessary to restraint the progress of vicious inclinations, has certainly tended in an eminent degree, to the production of crimes’.

In 55 cases from the Northern Circuit Assize in the second half of the eighteenth century, men whose occupations were listed as laborers, husbandmen and servants reported watches stolen from them (Styles 2007, 344).

The old system was particularly ill-equipped to deal with crime in the fast-growing manufacturing towns of the north like Manchester, where the number of constables and magistrates did not keep up with population growth. The result was that it became extremely difficult for victims of crime to even report offenses (Radzinowicz 1958, 208). Cf. Radzinowicz (1958, 208–209). For details on Middlesbrough, see Taylor (2002).

There was dramatic structural change. The share of population in agriculture fell from 48 % in 1750 to 20 % in 1850 (Mokyr 2004, 4–10). Per capita income growth was low: 0.17 % between 1760 and 1800 and 0.52 % between 1800 and 1830 according to Craft’s (1985) estimates. The gradual rise in income is consistent with real wages that did not increase at all between 1800 and 1830 according to Allen (2009), as the number of days worked increased (Koyama 2012b).

Among contemporary writers, John (1829, 25) recognized the role of inequality and the uncertainty of employment in ‘pushing’ individuals into crime, observing that ‘[c]rimes have multiplied from peculiarities in our condition—the extremes of indigence and opulence … the fluctuations in employment and subsistence—the enormous increase in property and population … the avidity of gain—the temptations to luxury and dissipation—and the rivalry in individual expense and ostentation which peculiarly marks the present period’. An unknown writer (Anonymous 1836, 10, emphasis added)—an opponent of a nationwide police force—conceded that ‘No doubt the progress of society and the large increase of population engaged in manufactures, has created a necessity where these changes have occurred, of a more vigilant and organized Police’.

According to Smith (2006, 44): the ‘increased presence and activity of defense counsel at the eighteenth-century Old Bailey only further contributed to the problems faced by prosecutors in proving private ownership of nondescript goods … [I]n 1784 James Scott, who had been indicted for stealing forty four pounds of spermaceti, was acquitted after his counsel, William Garrow, subjected the prosecutor’s witnesses to a withering cross-examination concerning the precise age, shape, color, and size of the “spermaceti cake” alleged to have been stolen from the victim. After the court instructed the jury that it was “incumbent” on the prosecution’s witnesses not to “swear rashly” at trial to the article’s purported identification, the jury acquitted the defendant’.

See Report of the Commissioners for inquiring into County Rates (1836, 8).

Cf. Fielding (1751), Colquhoun (1796), Wade (1829) and the eight Parliamentary Reports commissioned during this period. Piecemeal reforms were carried out. Parliament granted poor prosecutors some expenses after 1752, if they were successful in securing a prosecution, and an act of Parliament in 1754 allowed courts to pay the expenses of poor witnesses. In 1818 and 1826, this allowance was expanded so as to cover expenses incurred prior to the trial for felony cases (but not for misdemeanors).

The writings of Fielding, Colquhoun and Edwin Chadwick should be treated cautiously as they were not disinterested observers, but partisan political entrepreneurs trying to push through a program of police reform. But this argument was not seriously contested even by those who in favor of retaining the traditional system. For further evidence on the reluctance to prosecute see Hay (1975, 41), Beattie (1986, 35), Phillips (1989, 115–116), Jones (1992, 5).

According to Alexis de Tocqueville ([1835] 1958, 63): ‘[i]t is impossible to imagine anything more detestable than the criminal investigation police in England … There is no official charged with a duty to prosecute, which both makes worse the defect mentioned above, that of placing justice out of reach of the poor, and means that the criminal law is never enforced continuously or firmly’. Interestingly, however, Cottu, unlike de Toqueville, actually was favorably disposed towards the English legal and criminal justice system as a whole.

William Blackstone was of the same opinion. (Radzinowicz 1948, 418–419) noted that ‘It is not surprising that Blackstone should not have recognized ‘Police’ as an institution … He was an exponent of the liberal doctrine and of the liberal spirit, anxious to see the rights of the subject secured and respected, and the actions of the government jealously watched, lest it drift into arbitrariness and despotism’.

As late as 1822, a committee reporting to the Home Secretary Robert Peel advised against the introduction of a London police force observing that ‘[i]f a new system of police were to be constructed ab initio for the regulation of a great city, such defects [i.e., the inadequate incentive for private individuals to undertake prosecutions] would no doubt be remedied’ but arguing that despite this such a change could not be recommended on the grounds that it would impinge to greatly on individual freedoms: ‘[i]t is difficult to reconcile an effective system of police with that perfect freedom of action and exemption from interference, which are the great privileges and blessings of society in this country; and your committee think that the forfeiture or curtailment of such advantages would be too great a sacrifice for improvements in police or facilities in the detection of crime, however desirable in themselves if abstractly considered’ (Report from the Select Committee of the Police of the Metropolis 1822, 9–11).

Historians traditionally seen the eighteenth century British state as corrupt (Rubinstein 1983; Root 1991). The spoils system, or what later became known as ‘Old Corruption’ consisted of the widespread sale of offices and favors (Haring 1996; Philips 2004). Allen (2011) argues persuasively that this system made a lot of sense in a world of high measurement costs (the ‘spoils’ were a form of efficiency wages). Nevertheless, this set of institutional arrangements was not necessarily one to which one would want to entrust a professional police force.

For an example of the kinds of relationships associations built with solicitors see Cawthorne Association (1843).

The total number of 534 associations comes from the following sources: a list of associations that claimed expenses from the County Rates between 1830 and 1835 (Report of the Commissioners for inquiring into County Rates 1836, 319–327); the list of associations compiled by Philips (1989); a search of local newspapers, the details of all associations for the prosecution of felons list on the Access Archives website; and the records of local archives in Doncaster, London, Sheffield, and York. The newspapers consulted were The Derby Mercury, The Leeds Mercury, The Leicester Chronicle, The Hull Packet and East Riding Times, The Ipswich Journal, Jackson’s Oxford Journal, The Newcastle Courant, The York Herald and General Advertiser, The Sheffield Independent, and Yorkshire and Derbyshire Advertiser, The Bury and Norwich Post and East Anglian, and Gazetter and New Daily Advertiser.

Little and Sheffield (1983) found that the social membership of the Halifax associations was likewise diverse. They report that the occupations of the members of the committees they studied included ‘gentlemen, merchant, weaver, attorney, clergy and dyer’ (Little and Sheffield 1983, 799).

The Ecclesfield association tied its membership fees to the local tax (poor) rate its members were assessed for. Individuals who were assessed at £60 for the poor rate had to pay an annual membership fee of 60d (Ecclesfield Association 1843).

Article III of the Burnham Association (1833, 4–5) states that: ‘every Member occupying a Farm, or having Stock of a Farm description, and equally liable to risk, shall pay into the hands of the Treasurer the sum of one Pound and one Shilling. Tradesmen, Shopkeepers, and Market Gardeners the sum of Fourteen Shillings; and persons retired from business and occupying property under Twenty Pounds a Year, the sum of Seven Shillings’. See Koyama (2012a) for a list of associations known to practice price discrimination.

The Wheldrake Association in North Riding, for example was small and inactive; it subsidized only a few prosecutions in its 48-year history (Wheldrake Association 1816–1864). Other associations such as the Bradfield and Doncaster Associations were involved in between one and two prosecutions a year (Bradfield 1838–1886; Doncaster Boro’ 1821–1838).

For example in 1825 the Wheldrake Association reimbursed George Rotsey for going to Riccall to a magistrate accompanied by three women who had been stealing chips of wood (Wheldrake 1816–1864).

Phillips (1989, 142) notes that ‘[r]ural associations most commonly prosecuted thefts of farm animals (especially sheep and poultry), farm produce, and wood taken from trees, hedges, fences, and stiles. Urban associations were more likely to prosecute theft of raw material from places of work, theft from shops and houses, and garden produce, laundry stolen from gardens’.

‘Studies of the introduction of new police forces into communities suggest that one immediate effect which they produced is a marked increase in prosecutions for minor public order offences—brawls, drunkenness, disorderly conduct in public, etc. The new police bring with them a heightened sensitively to disorder which has previously been tolerated or at least not punished by legal sanctions; the imposition of this new order is initially resisted by the people who feel its effects resulting in a sharp initial rise in prosecutions for such offences’ (Philips 1977, 84).

It is reasonable to infer that members knew many offenders because when an offender was a stranger this was usually mentioned. The Harrow-on-the Hill Association for instance noted on September 12, 1812, that the daughter of Mr Sim ‘had been stopped and robbed by a Person unknown in a field leading from Kenton to Edgeware’ (Harrow Association 1801–1826, 12).

See, in particular, the detailed account books kept by the Harrow Association (1801–1826), the Bradfield Association (1838–1886), and the Bolton Percy Association (1825–1890).

See Philips (1989). I found no instances of associations hiring professional thief-takers, although they frequently paid small rewards to local constables.

For example: ‘when a murder was committed on a road leading out of Maidstone, both the Maidstone police and the county police claimed jurisdiction. In a heated exchange reported in the local press, the county police superintendent called the Maidstone superintendent a donkey and claimed unwarranted interference had permitted the murderer to escape. The case was never solved’ (Conley 1991, 29).

Similarly we are told that ‘[n]ot withstanding the great benefits said to have been derived at Stow in the Wold from the operations of a Constabulary paid by voluntary subscription, those benefits it appears are in danger of abandonment, unless a measure for a compulsory rate be conferred. It has become difficult to get in the subscriptions. “The farmers have no longer fear depredations, and they do not choose to part with their money’’’ (Halford 1839, 26).

This problem affected an association in Wandsworth. According to James Collingbourn there had been an association for the prosecution of felons but it was ‘a temporary one; it is hardly an association; it has been formed, but it has fell off; it did not exist above eighteenth months’ (Report from the Select Committee of the Police of the Metropolis 1828, 240).

In 1839 a proposed expansion of the Metropolitan police was opposed strongly by the Clapham Association both because it deprived the council magistrates of their authority and because it would ‘increase the patronage of the Government’ and the burdens of the people’ without enjoying ‘the confidence of the public’ (Clapham Association 1809–1840, unnumbered).

This resistance came from several quarters: classical liberals combined with trade unionists; see Storch (1976).

The Stockton association raised a cheer to ‘[t]he Police force’ on the grounds that ‘[w]ithout all of the force in detecting crimes the Association would lose three parts of its value’ (Stockton Association 1874). Rural prosecutions associations could cooperate with the police because they were much more modest affairs and did not attempt to provide their own watches.

The Darlington Society, founded in 1811, was still going in 1875 with hundred members. It was still active and in 1874 had made four separate prosecutions and secured four convictions. At the general meeting, reported in the Northern Echo, the attorney Mr W. Hodgeson commented ‘on the advantages to be derived from such an association and expressed his surprise that instead of having only 100 members they had not five or six times as many’ (Darlington Association 1875). Some societies still continue to this day as social clubs.