Douglas Hay

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Joe Saelmi
Crim 402- Willis
Thursday, February 24, 2011
Hay’s Paradox on Punishment

When examining punishments and laws of the seventeen and eighteen hundreds it is easy to see the paradox pointed out by Douglas Hay. As societies grew through the ages and Man became more civilized, men with wealth also became more interested in control. Especially during Feudal times, it is easy to see how those with power were bent on keeping it, and how those without it would strive to make ends meet.

They say poverty is a leading factor in crime, yet the laws that were made to keep the rich man’s wealth also contributed to more poverty and possibly more crime. Between the years 1688 and 1820 the number of laws punishable by death rose from fifty to two hundred. The number of crimes went up as well as the number of convictions. The original thought behind this was that the death penalty gave comfort to those with wealth. There was no structured police force at the time and even if there was how would anyone call them in the case of a break in. “He himself had dogs, firearms, lights and bells at his own country home, and took a brace of double-barreled pistols to bed with him every night 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,” (1975: pg. 18).

Parliament passed acts in 1753, 1764 and 1769 that gave the death penalty to those who stole, raided, or destroyed goods from shipwreck, linens and food that didn’t belong to them. Nearly all of the statutes created in this era pertained to property offenses. You would think that with the number of laws and convictions on the rise the number of executions would increase as well. However, the number of people put to death actually declined. Thus is the paradox identified by Hay. “The number of executions did not increase to match the number of convictions,” (1975: pg. 22). According to Hay, this could be attributed to the raising number of pardons given out by judges, where they could recommend the offender be transported instead of being put to death. Property had become sacred. Your life could be summed up by your wealth and personal gains and therefore violating some one else’s property could be punished. Even John Locke argued that the purpose of a government was to preserve property. This was clearly the stance of the Parliament. They passed law after law and introduced act after act in order to keep their statutes up to date to increase prosecution against new property crimes. The poor started looting wreckage washed in from a shipwreck. They made laws against that because the property they took belonged to a king or a noble of some kind, but more importantly it wasn’t their property to take. Therefore it was punishable by death. The price of food was raised so the poor began raiding mills and rioting, so soon they made a law against that as well and so on and so forth. Anytime there was an issue concerning property a law was introduced as a method of deterrence. The wealthy felt that people would shy away from crime if the punishment was heavy enough.

Hay’s argument is concerned with the ideology of the system. How does it actually work to deter crime? What is actually happening to separate the poor from the nobles and separate society into rich and poor? He breaks it down into the Majesty, Justice and Mercy of the criminal justice system. When court is in session the Judges and prosecutors pretty much parade down the streets. They show up in fine clothing, full white wigs. Clean, proper, there’s a big theatrical like spectacle about it. “They enter town with bells ringing and trumpets playing, preceded by the sheriffs men... and they escort them everyday to the assize hall and back again to their apartments,” (1975: pg. 27). Everything is a big show, even the public hangings. The officials want the big spectacle so that the viewers will go...
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