by Alan Brooke
Parliament created a very large increase in the list of capital offences during the eighteenth century in an attempt to tackle an apparently serious increase in the level of crime. What became known as the ‘Waltham Black Act’ of 1722 imposed the death penalty on those apprehended merely for being armed and disguised on the open road, open heath or in forests where there was game; for wounding cattle; for setting fire to crops; and various other rural crimes. Other legal enactments which sought to control the common people included the Riot Act, the Combination Act and the Workhouse Act. The Riot Act of 1715 proved to be a very useful measure against collective activity. Under its terms, any gathering of twelve or more people assembled for what were identified as ‘unlawful purposes’ had to disperse within an hour of its proclamation as a riot by a magistrate. Failure to disperse rendered all present guilty of felony. This hardening of attitudes saw some people declaring that hanging was too good for convicted felons who should be broken on the wheel instead.
In fact penal policy at this time was by no means straightforward. The early eighteenth century saw significant reforms to the criminal law and the ways in which it was enacted. While increasing the deterrent effects of the law, these reforms were also characterised by elements of humanity and practicality. Increasingly the courts imposed non-capital punishments on convicted felons. These might involve detention with hard labour or transportation to the American colonies. The victims of crime were encouraged to bring prosecutions themselves. Much has been written in the past about Britain’s ‘Bloody Code’ with horror stories of how children of twelve or less were despatched to the gallows for shoplifting or transported for crimes that nowadays seem trivial. This suggests a brutally retributive penal system that was the desperate response of the authorities to levels of crime that were apparently getting out of control. The reality was more complex.
In London the spectacle of hanging at Tyburn occupied a central place in judicial and penal practice until the 1780s. However, simple discouragement of crime by terror was not an effective expedient against much of the crime that was perpetrated in London, and in practice eighteenth-century legal and penal policy was characterised by flexibility. It made considerable use of the royal prerogative of pardon and developed a pragmatic balance between deterrence and terror. J.M. Beattie sums up:
An overriding pattern is clear, despite fluctuations over time and differences from place to place. The stern imperative of a criminal code in which, under the Tudors, execution appears to have become mandatory for a wide range of property crimes gave way in practice to a more moderate regime, the harsh sanctions of the law being blunted by jurors and judges alike. More acquittals and partial verdicts … resulted in falling rates of hanging and the elaboration of a number of alternative, non capital punishments.
(Beattie 2001: 279)
Property became sacrosanct, elevated in law almost to the position of a deity. John Locke in Two Treatises of Government, published in 1690, acted as the ideologue and mouthpiece for the men who wanted a form of government which allowed them to maximise the wealth they could accrue from manufacturing, trade and finance. ‘Government has no other end but the preservation of property’, Locke said with disarming frankness. In order to safeguard wealth and property, governments over the next century created a penal code which, at least on paper, was of appalling ferocity. Those classes which dominated Parliament used the criminal law and the creation of more and more capital offences to support a redefinition of property and the purposes of government. As Douglas Hay said, ‘the gentry and merchants and peers who sat in Parliament in the eighteenth century set new standards of legislative industry, as they passed act after act to keep the capital sanction up to date, to protect every conceivable kind of property from theft or malicious damage’ (Hay et al. 1977: 22).
In the eighteenth century, the inadequacies of the police system meant that only small numbers of those who offended were apprehended and brought to justice. Therefore those who were caught were liable to be made an example of and treated with considerable ferocity. However, what initially appears to be a cruelly vindictive penal code turns out often to be something very different because of a considerable discrepancy between theory and practice. As J.M. Beattie argues: ‘In the century after the Restoration, in a period in which the society and the culture of the metropolis were undergoing considerable change, the elements of an alternative means of dealing with crime in urban society were emerging in policing, in the practices and procedures of prosecution, and in the establishment of new forms of punishment’ (Beattie 209: x).
Since Elizabethan times, juries had frequently practised what Sir William Blackstone called ‘pious perjury’. This meant that the severity of the law was often mitigated by juries when prisoners were charged with capital offences. Where theft had been involved, for example, they sometimes undervalued the articles stolen so that the crime no longer constituted grand larceny, a capital felony, but instead petty larceny, a misdemeanour attracting a lesser punishment. Judges on their own initiative sometimes dismissed cases and reprieves were by no means uncommon. They often sentenced convicted felons to transportation rather than hanging. A number of women avoided the death penalty by pleading ‘benefit of the belly’. This allowed them a respite until the baby was born and in practice usually meant they were ultimately pardoned. Women in Newgate awaiting trial or execution for capital offences often bribed the warders to allow men to visit them for the purpose of sex. The hoped-for outcome was, of course, pregnancy. The so-called ‘Bloody Code’ was actually highly flexible in practice.
When the prisoner in the dock was well-to-do, he might have recourse to bribery. False witnesses would be produced, happy to tell the grossest lies in court in return for payment. They might be associates of the accused or what were known as ‘straw men’, professional witnesses who sauntered around outside the court advertising their trade by sticking pieces of straw in the buckles of their shoes. They would lie on behalf of anyone or say absolutely anything for money. Corruption was deeply entrenched in all aspects of public life in the eighteenth century and the legal and judicial systems were no exception.
Juries, too, could be bribed. They came to their decisions very quickly by today’s standards. Jurors were more socially cohesive than today, consisting of those who met certain property qualifications and usually had shared values. They often happily concurred with the recommendations of the foreman, an older and more experienced man. However, although jurors were not the social peers of most of the wretches over whose fate they deliberated, they could act with genuine compassion. People of previous good character or those who could convince the court of extenuating circumstances might well be treated leniently. For example, Ann Flynn appeared before a court in London in 1743 charged with stealing a shoulder of mutton. The court was told that she only committed the crime when her husband, the family breadwinner, became unable to work through illness and she did so in order to feed her starving children. The jury declared that she was indeed guilty but recommended clemency. The judge, combining professional discretion with compassion, proceeded to fine Anne the substantial sum of 1s. It was immediately paid by the jury itself.
Many serious offenders escaped hanging through the curious practice of benefit of clergy. This had its origins in the conflicts between the jurisdiction of the Church and that of the state in the Middle Ages and accorded clerics the right to be tried for certain types of felony in the ecclesiastical, rather than the royal, courts. Proof of clerical status was rather generously taken as the ability to read, a test which became increasingly meaningless as literacy became more widespread. During the reign of Henry VII, it was declared that those convicted of felony, in particular theft and manslaughter, might escape hanging in the case of a first conviction if they could demonstrate that they could read. In practice, if the prisoner could recite Psalm 51 or at least that part known as the ‘neck verse’, then he would be saved from the gallows. Judges even exercised discretion when benefit
of clergy was claimed and might err towards clemency by ignoring a hopelessly unlettered mumble by a supplicant who could not even memorise the required, brief passage, let alone read it. In cases where a successful plea of benefit of clergy was submitted for the court’s consideration, the judge and the jury could exercise considerable discretion. They might, for example, acquit the defendant of a non-clergiable offence but find him guilty of a lesser, clergiable crime. This came to be known as a ‘partial verdict’.
An unpredictable, even capricious mixture of terror and apparent humanity and clemency exercised by the courts added powerfully to their mystique. The elaborate rituals whereby bewigged judges in ermine-tipped scarlet robes donned the black cap when death sentences were solemnly pronounced emphasised the majesty of the law and tended to overawe those who offended against it. Flexibility in the application of the law could mean inconsistency. The court’s decision might therefore be unclear until the very last minute, heightening the tension. There were also ‘general’ or ‘circuit’ pardons. These were issued occasionally in celebration of particularly auspicious public events and could even result in hardened recidivists getting off scot-free.
The names of those condemned to death at the Old Bailey would be formally presented to the king for the possible exercise of his prerogative of mercy. In practice, especially after 1688, these cases were usually reviewed by the Cabinet Council at which the monarch might not necessarily be present. The prisoner would not appear himself although a petition might be offered up on his behalf. The Recorder of the City of London presented a report containing what he saw as the facts of the case to a Council meeting. He might have to answer questions but the petition was only one item in what was frequently a crowded agenda and there is no evidence that it was dealt with at greater length than any other item. The Council took a vote and the Recorder would make his way back to Newgate bearing what was known as the ‘dead warrant’ which gave the names of those who were to be hanged and the day to be set aside for the execution. It is likely that such factors as signs of remorse, of the felon having been duped by recidivist associates, his previous character and the nature of the offence would be taken into account. It was somewhat arbitrary.
From time to time, especially in the years immediately after the Restoration of 1660, substantial numbers of criminals were transported to the American colonies where there was a desperate shortage of labour. When they got there, they were sold to the highest bidder for whom they had to work while serving out their sentences under conditions virtually indistinguishable from those of slaves. Transportation suited the English authorities because it enabled them to be seen as exercising clemency while getting rid of some of the country’s most anti-social elements, at least temporarily. Transportation to America ceased for a while because it was decided that England was already underpopulated and could not afford to lose so many able-bodied people, especially young men. However the practice was resumed after the Transportation Act of 1718 when it became very common to despatch convicted felons to the colonies for terms of seven or fourteen years. Many of these had been found guilty of capital offences but, on receiving a royal pardon, had had their sentences ‘commuted’ to transportation. Given the appalling conditions in the ships that carried them to the penal colonies and the living and working conditions when they arrived, the pardon was often tantamount to a death sentence anyway. The fact that this alternative to the capital sanction became available was one reason for a fall in the number of hangings over the following period.
American colonies ceased to be a destination for British criminals when they gained their independence in the 1770s and the authorities then started using superannuated wooden men o’ war with their armament, rigging and other fittings removed, as floating prisons. These ‘hulks’ were moored on the River Thames and elsewhere and the convicts used as forced labour locally. The hulks were soon filled to bursting point and the authorities forced to look elsewhere. In 1786 they came up with the idea of transporting convicts to Australia, the first cargo of woebegone criminals arriving there in January 1788, near Botany Bay in New South Wales.
Whipping remained a common punishment for petty larceny into the eighteenth century. Petty larceny was the only form of theft for which the perpetrators were not liable for capital punishment. It was not uncommon for juries to reduce the crime of grand larceny before them to one of petty larceny, for which whipping was seen as an appropriate punishment, where goods of low value were concerned. Whipping involved physical pain and public humiliation. The victim was stripped to the waist and then whipped through the streets behind a horse-drawn cart. This was another piece of public theatre like the ride from Newgate to Tyburn and the hangings there and it attracted large and unruly crowds who often disrupted business activity in the City.
In the City of London the Lord Mayor headed the administration of justice and enforcement of the law. After 1741 all City aldermen were also magistrates. They had jurisdiction over Newgate Prison and over the courts at the Old Bailey, where the cases that were considered were from the City and from Middlesex, which constituted most of the metropolis north of the Thames that was not part of the City. The sessions over which the City and the Middlesex magistrates had jurisdiction took place eight times a year. More serious offences were heard before High Court judges also presiding at the Old Bailey. Although its population was declining as a proportion of the capital’s overall numbers, the City was still immensely important because of historical precedent and its enormous wealth. While there was still much small-scale manufacturing in the City, it was now developing as the hub of a complicated web of overseas and colonial trading relations and as a major international centre of financial services. Because of its affluence and its attraction for those wanting fame and fortune, the City was plagued by crimes such as highway robbery and burglary, against which its citizens felt they had little protection and which they perceived as growing at an alarming rate.
High levels of crime were seen as evidence that the moral fabric of society was breaking down. As J.M. Beattie has commented:
a great chain of immorality and illegality – a linking commonly conceptualized as a slippery slope that began with apparently minor acts of wilfulness and disobedience that were to be taken seriously because they gave rein to the passions and, if not checked, would lead to the erosion of moral sense and of the principles of right behaviour that derived from religious beliefs and practice.
(Beattie 2001: 51)
Minor misdeeds such as Sabbath-breaking had to be taken seriously because they showed susceptibility to a downward spiral of moral depravity. Large numbers of artless young people flocked to London in search of wealth and fame. These vulnerable youngsters could so easily move from Sabbath-breaking to the manifold immoral and criminal attractions to be found in London’s brothels, taverns, coffee houses, theatres, gaming houses and fairs. This analysis of the causes of crime highlighted the insidious role allegedly played by ‘lewd women’. To enable them to enjoy the salacious pleasures they offered, men went on to commit robbery and all sorts of other offences. This attitude was part of a continuum which had long demonised women as evil sirens employing their lubricious charms in order to captivate and control the male sex. Dorothy George provides a corrective by explaining that:
there is little doubt that the hardships of the age bore with especial weight upon them [women]. Social conditions tended to produce a high proportion of widows, deserted wives, and unmarried mothers, while women’s occupations were over-stocked, ill-paid and irregular.
(George 1966: 174)
Large numbers of young women did indeed come to London in search of employment but what they managed to obtain was likely to be ill-paid, unskilled or at best semi-skilled work that was vulnerable to economic and seasonal fluctuations. The justification for paying women low wages was that their employment was considered nothing more than a supplement to the earnings of the male breadwinner on whom they depended and that it was often spent on m
ere frivolities. The harsh reality is that for very many women, with or without male partners, the low wages and irregular employment left them largely destitute. When they had no work, poverty stared them in the face and it was all too easy for them to slip into illegal ways of making money. J.M. Beattie takes up this theme:
For single women especially, the capital offered a greater degree of independence and privacy – a certain freedom from the surveillance and controls of patriarchal and paternalistic social relationships. At the same time, however, and as an inevitable consequence, the urban world forced on them a greater need for self-reliance. This must have been true of single women and widows in particular, and it is hardly surprising that not only were larger numbers of women drawn into theft in London, but that fully eighty per cent of the women before the Old Bailey on property charges in this period were unmarried.
(Beattie, 2001: 71)
What then was the rationale that underpinned the penal system in the period up to the 1780s? Three main principles can be identified. One was the concept of deterrence. It was believed that the very public ceremonies involving the condemned prisoner’s last journey to the place of execution and the rituals on the gallows including their confession and subsequent agonising death, were effective deterrents which would instil into those who witnessed them a sense of the omnipotence of the law and the terrible fate awaiting those who committed serious offences. Retribution was another principle. The suffering attached to the punishment should be proportional to the heinousness of the crime. Laws were made by the wealthy and powerful. For this reason the seriousness with which offences were regarded and punished reflected, although not absolutely, the values and mores of those in power and these could change in different circumstances. The third principle was that the offender, even one guilty of a minor crime, had shown his disregard, even his contempt, for the values around which society operated. Therefore when the punishment fell short of death, he had to undertake a ritual penance involving shame and humiliation in public.