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Weekend Long Read

Henry Fielding, a Man for This Season

The great 18th-century English jurist and author of Tom Jones has much to teach 21st-century Americans about criminal justice. 


- August 23rd, 2019
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No one speaks of a century’s first decade as “the aughts.” Few of us speak of the second decade as “the teens.” But by the time the third decade comes around, we seem to have gotten used to the charming fact that we’re in a new chapter of history. Our shouts of “It’s the 21st century!” (or, even better, “It’s a new millennium!”) become shrugs; all that enthusiasm is “so last year.” With the third, the decades start acquiring names.

We will soon be in “the twenties.” A hundred years ago, that word became inseparable from a certain adjective. It was “the Roaring Twenties,” the era of Prohibition, fast cars, and “flaming youth”; of flappers, hip flasks, and raccoon coats; of bootleggers and Tommy guns. Brazen gangsters like Al Capone and daring aviators like Charles Lindbergh vied to capture the public’s imagination. And it all came to a glorious end when the stock market crashed in 1929.

I grew to manhood in another uproarious decade, one so lurid that it doesn’t even need an adjective: “the Sixties.”

It started out with JFK and the New Frontier, ended up awash in war, riots, and assassinations, yet still managed to put a man on the moon. Beatlemania gave way to manias of every kind. “The Great Society” was going to wipe out poverty. “The pill” was going liberate womankind. “Sex, Drugs, and Rock ’n’ Roll” (or, more succinctly, “Peace, Love, Dope”) became the watchword for millions. A popular beer commercial advised us to “grab for all the gusto you can get.” Nothing, it seemed, stood between us and all the earthly delights we had come to consider our birthright.

But peace and prosperity proved elusive. Prosperity? We soon would be mired in the “malaise” of which President Jimmy Carter complained (though not using precisely that word). As for peace, humanity apparently finds it boring. We kept finding new and bloodier ways of disturbing it.

Worst of all the 1960s’ changes: Crime shot through the roof. Long after that decade passed into history, the crime wave it ushered in kept going and going and going. Per-capita crime rates doubled, tripled, quadrupled and even quintupled. For a time, deranged killers (Charles Whitman in Texas, Richard Speck in Illinois, Charles Manson in California) were household names. Then mass murder grew so common that crimes with multiple fatalities started being reported on the inside pages of the newspaper. Today, even with the Internet and a 24/7 television news cycle, and despite the crime wave’s having ebbed considerably, few can recall the latest perps’ names.

I grew up fairly oblivious to this mayhem. I read about it in the papers and saw it on TV, but it hadn’t entered my life, and the received opinion of the day was that it was a small matter, something of interest only to “reactionaries,” bigots, and other fearmongers. Only mean people, I was told, were angry about crime.

Eventually, the crime wave started touching people I knew and cared about, but even then I remained under the bien-pensants’ spell—until I came across two voices who gave the lie to that P.C. line about “mean people.”

One voice belonged to Will Rogers, who held surprisingly “hang ’em high” views. The other belonged to the great 18th-century English author and jurist, Henry Fielding.

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One of the happier events of the Sixties was the production of the 1963 British movie “Tom Jones,” based on Fielding’s 1749 novel of the same name. It won Academy Awards for best picture, director, musical score, and adapted screenplay. In my opinion, “Jones” is one of the most spirited and entertaining films ever made. My love for it is partly due to the fact that its lead actress, Susannah York, resembles my high school sweetheart. But I challenge anyone to watch the picture without enjoying it immensely.

Back in those days, you couldn’t just slap a disc of your favorite movie into the DVD player and watch it as much as you pleased. You might catch it on re-release, and once it gained the dusty status of a “classic,” you might find it turning up at a college-town revival house. But since I couldn’t get enough “Tom Jones” that way I bought an annotated copy of Fielding’s book and read it.

So, here I was, all set for another innocent romp through the bushes with Tom and his ladies, when I came across something I didn’t expect. In the book, Fielding describes how a rich old woman, out of silly vanity, once refused to press charges against a robber who had complimented her looks while stealing her jewelry. Underneath the passage, in the notes, I found this quotation from another Fielding work, An Enquiry Into the Causes of the Late Increase of Robbers (1751): 

Robbery is an offence not only against the party robbed, but against the public, who are therefore entitled to prosecution, and he who prevents or stifles such the prosecution is no longer an innocent man, but guilty of a high offence against the public good.

When I first read this in 1975, the United States Supreme Court under the leadership of Chief Justice Earl Warren and his successors had just spent several years preventing and stifling the prosecution of countless crimes all over the nation, to the consternation of police officers everywhere, but to the unanimous hosannas of the liberal establishment. And here was one of the heroes of English literature, calling that out as a high offense against the public good!

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Added to my reading of Will Rogers and to my increasing personal experience of left-wing fallibility, this went a long way toward making me a conservative. I had volunteered for liberal Democrat Eugene McCarthy. I had cast my first vote for the even more liberal George McGovern. Nevertheless, within a few years, I was firmly on the Republican side. In 1980, like “Clean Gene” himself, I supported Ronald Reagan, and—despite perpetual disappointment with the GOP’s performance on crime—I stayed Republican from then on.

But back to Fielding. Having read that note, I immediately acquired a copy of his Enquiry. What follows is a survey of some of the highlights of that work, which I present here as much for our readers’ entertainment as for their edification. Fielding, after all, was a very talented writer.

The book begins like so:

The great increase of robberies within these few years is an evil which to me appears to deserve some attention; and the rather as it seems (though already become so flagrant) not yet to have arrived to that height of which it is capable, and which it is likely to attain; for diseases in the political, as in the natural body, seldom fail going on to their crisis, especially when nourished and encouraged by faults in the constitution. . . .

For my own part, I cannot help regarding these depredations in a most serious light; nor can I help wondering that a nation so jealous of her liberties, that from the slightest cause, and often without any cause at all, we are always murmuring at our superiors, should tamely and quietly support the invasion of her properties by a few of the lowest and vilest among us.

Doth not this situation in reality level us with the most enslaved countries? If I am to be assaulted, and pillaged, and plundered; if I can neither sleep in my own house, nor walk the streets, nor travel in safety; is not my condition almost equally bad whether a licensed or unlicensed rogue, a dragoon or a robber, be the person who assaults and plunders me? The only difference which I can perceive is that the latter evil appears to be more easy to remove.

Again, Fielding as much as says, “In your face, liberals!” Unlike the Warren Court and its acolytes, he shows no indifference to crime nor reluctance to battle it even if that means correcting certain “faults in the constitution.” Quite the contrary. Of the justice-thwarting “technicalities” which so often let culprits walk free (and which the Warren Court multiplied and magnified, falsely claiming its work flowed necessarily from constitutional requirements), Fielding expresses his disgust:

The villain, contrary to the opinion and almost direct knowledge of all present, is triumphantly acquitted, laughs at the court, scorns the law, vows revenge against his prosecutors, and returns to his trade with a great increase of confidence, and commonly of cruelty.

Rarely has liberalism’s senseless softness on crime received so eloquent a rebuke.

Liberals may be pleased to know that Fielding was something of a “root causer”; he believed the social conditions that give rise to crime are the first point of attack. But unlike today’s “root causers,” he had nothing against vigorous law enforcement while social improvement is pending. And his views on what constitutes “root causes” were decidedly moralistic.

In Fielding’s assessment of those causes, it will become apparent that he never got the memo about all men being created equal. He takes for granted the existence of England’s class hierarchy, which is understandable since Thomas Jefferson and friends wouldn’t challenge that hierarchy for another quarter-century. Anyway, America’s Declaration of Independence doesn’t deny the existence of upper, middle, and lower classes, only their divinely ordained immutability.

And Fielding’s acceptance of the class system was hardly absolute, as we shall see: 

First, then, I think that the vast torrent of luxury, which of late years hath poured itself into this nation, hath greatly contributed to produce, among many others, the mischief I here complain of. 

I am not here to satirise the great, among whom luxury is probably rather a moral than a political evil. But vices no more than diseases will stop with them; for bad habits are as infectious by example, as the plague itself by contact. In free countries, at least, it is a branch of liberty claimed by the people to be as wicked and as profligate as their superiors. 

Thus while the nobleman will emulate the grandeur of a prince, and the gentleman will aspire to the proper state of the nobleman, the tradesman steps from behind his counter into the vacant place of the gentleman. Nor doth the confusion end here; it reaches the very dregs of the people, who aspiring still to a degree beyond that which belongs to them, and not being able by the fruits of honest labour to support the state which they affect, they disdain the wages to which their industry would entitle them; and abandoning themselves to idleness, the more simple and poor-spirited betake themselves to a state of starving and beggary, while those of more art and courage become thieves, sharpers, and robbers.

Could luxury be confined to the palaces of the great, the society would not, perhaps, be much affected with it; at least, the mischiefs which I am now intending to obviate can never be the consequence. . . . For the loss of thousands, or of a great estate, is not to be relieved or supplied by any means of common theft or robbery. With regard to such evils, therefore, the legislature might be justified in leaving the punishment, as well as the pernicious consequence, to end in the misery, distress, and sometimes utter ruin of a private family. 

But when this vice descends downward to the tradesman, the mechanic, and the labourer, it is certain to engender many political mischiefs, and among the rest it is most evidently the parent of theft and robbery. . . . In this case, therefore, the public becomes interested, and consequently the legislature is obliged to interpose.

Zeroing in on one particular type of luxury, Fielding goes after the gambling industry, and his mockery thereof is enough to make our Las Vegas grandees, our state lottery commissioners, and even our casino-building Fearless Leader squirm:

I come now to the last great evil which arises from the luxury of the vulgar; and this is gaming; a school in which most highwaymen of great eminence have been bred. This vice is the more dangerous as it is deceitful, and, contrary to every other species of luxury, flatters its votaries with the hopes of increasing their wealth; so that avarice itself is so far from securing us against its temptations, that it often betrays the more thoughtless and giddy part of mankind into them; promising riches without bounds, and those to be acquired by the most sudden as well as easy and indeed pleasant means.

And here I must again remind the reader that I have only the inferior part of mankind under my consideration. I am not so ill-bred as to disturb the company at a polite assembly, nor so ignorant of our constitution as to imagine that there is a sufficient energy in the executive part to control the economy of the great, who are beyond the reach of any, unless capital laws. Fashion, under whose guidance they are, and which created the evil, can alone cure it.

With patience therefore must we wait, till this notable mistress of the few shall, in her good time, accomplish so desirable a change; in fact, till great men become wiser or better; till the prevalence of some laudable taste shall teach them a worthier manner of employing their time; till they have sense enough to be reasoned, modesty enough to be laughed, or conscience enough to be frightened, out of a silly, a shameful, and a sinful profligacy, attended with horrid waste of time, and the cruel destruction of the families of others, or of their own.

Fielding also notes the debilitating effects of welfare dependency, which he thought can be counteracted by what we might call “workfare”:

It must be matter of astonishment to any man to reflect, that in a country where the poor are, beyond all comparison, more liberally provided for than in any other part of the habitable globe, there should be found more beggars, more distressed and miserable objects, than are to be seen throughout all the states of Europe. . . .

To say the truth, this affair of finding a universal employment for the industrious poor is of great difficulty, and requires talents not very bountifully scattered by nature among the whole human species. And yet, difficult as it is, it is not, I hope, impracticable, seeing that it is of such infinite concern to the good of the community. Hands for the work are already supposed, and surely trade and manufacture are not come to so low an ebb, that we should not be able to find work for the hands. The method of adapting only seems to be wanting. And though this may not be easy to discover, it is a task surely not above the reach of the British Parliament, when they shall think proper to apply themselves to it. 

Having made his recommendations for mitigating crime’s root causes, Fielding turns to look for a means of eliminating the encouragement offered to criminals by lax law enforcement:

In serious truth, if proper care should be taken to provide for the present poor, and to prevent their increase by laying some effectual restraints on the extravagance of the lower sort of people, the remaining part of this treatise would be rendered of little consequence; since few persons, I believe, have made their exits at Tyburn who have not owed their fate to some of the causes before mentioned. 

But as I am not too sanguine in my expectations on this head, I shall now proceed to consider of some methods to obviate the frequency of robberies, which, if less efficacious, are perhaps much easier than those already proposed. And if we will not remove the temptation, at least we ought to take away all encouragement to robbery.

Prominent among those methods was the death penalty. In words I quoted in my first article for American Greatness, Fielding argues for its inexorable enforcement:

To speak out fairly and honestly, though mercy may appear more amiable in a magistrate, severity is a more wholesome virtue. . . . The passions of the man are to give way to the principles of the magistrate. Those may lament the criminal, but these must condemn him. . . .

The danger and certainty of destruction are very different objects, and strike the mind with different degrees of force. It is of the very nature of hope to be sanguine, and it will derive more encouragement from one pardon than diffidence from twenty executions. . . . If therefore the terror of this example is removed (as it certainly is by frequent pardons) the design of the law is rendered totally ineffectual; the lives of the persons executed are thrown away, and sacrificed rather to the vengeance than to the good of the public, which receives no other advantage than by getting rid of a thief, whose place will immediately be supplied by another.

To those honest folks who still shrank from sending England’s criminals to Tyburn Tree, he made this appeal:

To desire to save these wolves in society may arise from benevolence, but it must be the benevolence of a child or a fool, who, from want of sufficient reason, mistakes the true objects of his passion, as a child doth when a bugbear appears to him to be the object of fear. Such tender-heartedness is indeed barbarity, and resembles the meek spirit of him who would not assist in blowing up his neighbour’s house to save a whole city from the flames. . . .

Here likewise is the life of a man concerned; but of what man? Why, of one who, being too lazy to get his bread by labour, or too voluptuous to content himself with the produce of that labour, declares war against the properties, and often against the persons, of his fellow-subjects; who deprives his countrymen of the pleasure of travelling with safety, and of the liberty of carrying their money or their ordinary conveniences with them; by whom the innocent are put in terror, affronted and alarmed with threats and execrations, endangered with loaded pistols, beat with bludgeons, and hacked with cutlasses, of which the loss of health, of limbs, and often of life, is the consequence; and all this without any respect to age, or dignity, or sex.

Let the good-natured man, who hath any understanding, place this picture before his eyes, and then see what figure in it will be the object of his compassion.

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The reference to blowing up houses reflects the fact that urban wildfires such as the great London fire of 1666 and the San Francisco fire of 1906 were fought that way.  They’d create a firebreak with explosives, just as they do now with chainsaws and bulldozers in fighting forest fires.

Fielding wrapped up his treatise by considering the manner in which executions should be carried out. Here he differs from those who today would argue for hanging criminals on live television, the better to deter their fellows yet at large:

If every hope which I have mentioned fails the thief, if he should be discovered, apprehended, prosecuted, convicted, and refused a pardon, what is his situation then? Surely most gloomy and dreadful, without any hope and without any comfort.

This is, perhaps, the case with the less practised, less spirited, and less dangerous rogues; but with those of a different constitution it is far otherwise. No hero sees death as the alternative which may attend his undertaking with less terror, nor meets it in the field with more imaginary glory. Pride, which is commonly the uppermost passion in both, is in both treated with equal satisfaction. The day appointed by law for the thief’s shame is the day of glory in his own opinion. His procession to Tyburn, and his last moments there, are all triumphant; attended with the compassion of the meek and tender-hearted, and with the applause, admiration, and envy of all the bold and hardened.

His behaviour in his present condition, not the crimes, how atrocious soever, which brought him to it, are the subject of contemplation. And if he hath sense enough to temper his boldness with any degree of decency, his death is spoken of by many with honour, by most with pity, and by all with approbation. . . .

How far such an example is from being an object of terror, especially to those for whose use it is principally intended, I leave to the consideration of every rational man; whether such examples as I have described are proper to be exhibited must be submitted to our superiors.

In Fielding’s view, the condemned should be hanged behind closed doors, their deaths observed only by those who had sentenced them. This, he believed, would cost the gallows none of its deterrent value:

The thief who is hanged today hath learnt his intrepidity from the example of his hanged predecessors, as others are now taught to despise death, and to bear it hereafter with boldness from what they see today. . . .

The mind of man is so much more capable of magnifying than his eye, that I question whether every object is not lessened by being looked upon: and this more especially when the passions are concerned: for these are ever apt to fancy much more satisfaction in those objects which they affect, and much more of mischief in those which they abhor, than are really to be found in either.

If executions therefore were so contrived that few could be present at them, they would be much more shocking and terrible to the crowd without doors than at present, as well as much more dreadful to the criminals themselves, who would thus die in the presence only of their enemies, and where the boldest of them would find no cordial to keep up his spirits, nor any breath to flatter his ambition.

But by all means, Fielding wanted executions to be prompt:

The great business is to raise . . . an object of terror, and at the same time, as much as possible, to strip it of all pity and all admiration. To effect this, it seems that the execution should be as soon as possible after the commission and conviction of the crime; for if this be of an atrocious kind, the resentment of mankind being warm, would pursue the criminal to his last end, and all pity for the offender would be lost in detestation of the offence. Whereas, when executions are delayed so long as they sometimes are, the punishment and not the crime is considered; and no good mind can avoid compassionating a set of wretches who are put to death we know not why, unless, as it almost appears, to make a holiday for, and to entertain, the mob.

One can only imagine what Fielding would have said about today’s state of affairs, in which the interval between sentencing and execution can stretch across decades. 

Finally, here is Fielding’s bottom line:

Suppose then that the court at the Old Bailey was, at the end of the trials, to be adjourned during four days; that against the adjournment day a gallows was erected in the area before the court; that the criminals were all brought down on that day to receive sentence; and that this was executed the very moment after it was pronounced, in the sight and presence of the judges.

Nothing can, I think, be imagined (not even torture, which I am an enemy to the very thought of admitting) more terrible than such an execution; and I leave it to any man to resolve himself upon reflection, whether such a day at the Old Bailey or a holiday at Tyburn would make the strongest impression on the minds of everyone. . .

Upon the whole, something should be, nay must be done, or much worse consequences than have hitherto happened, are very soon to be apprehended. Nay, as the matter now stands, not only care for the public safety, but common humanity, exacts our concern on this occasion; for that many cart-loads of our fellow creatures are once in six weeks carried to slaughter, is a dreadful consideration; and this is greatly heightened by reflecting that, with proper care and proper regulations, much the greater part of these wretches might have been made not only happy in themselves, but very useful members of the society which they now so greatly dishonour in the sight of all Christendom.

In the years before the great American crime wave took off, the people who stood guard against it were not voiceless. Unlike Fielding, however, those who spoke up did not escape the obloquy of the Left. Prominent among the “bigots and fearmongers” calling for law and order was FBI Director J. Edgar Hoover, one of the Left’s favorite villains. Hoover had been battling crime, and making a lot of noise doing it, for more than 40 years. “Crime,” he had told the University of Maryland’s class of 1936, “is a dangerous, cancerous condition which, if not curbed and beaten down, will soon eat at the very vitals of the country.”

Those words are true as true can be, regardless of what one may think of the man who spoke them. People like Hoover haven’t been invited to speak on college campuses for a long time, more’s the pity. But even those of us who have no use for Hoover should pay heed to Fielding, and to Rogers, and to modern voices against crime such as Heather Mac Donald, the late James Q. Wilson, and even President Donald J. Trump.

We should take heed, for while the crime cancer may be in remission now, with Democrats like New York Mayor Bill De Blasio and Massachusetts Senator Elizabeth Warren deriding and demonizing law enforcement and promoting the very policies that sent crime soaring a half-century ago, our prognosis is darkening.

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