Punishment

A man a crowd of prisoners sentenced to transportation by a rope. The two foremost prisoners are bearded, and behind them is a knock-kneed youth taking a pinch of snuff; and a man a bone. There are ten prisoners in all. In the background can be seen the façade of Newgate prison as rebuilt following the Gordon Riots. A Fleet of Transports under Convoy. 1781. British Museum, Satires 5957, Chaloner Smith undescribed. © Trustees of the British Museum.

Introduction

Convicted criminals were sentenced to their punishments by Justices of the Peace at sessions and the judges at the Old Bailey. There were a number of possible punishments to choose from. While some were dictated by statute for specific offences, the Justices and judges often had the opportunity to use their discretion, as they attempted to match the punishment to the individual circumstances of the criminal and the crime. Sentences were not always carried out, however, owing to the widespread use of royal pardons, which introduced a further element of discretion into the process. While convicts had little power to determine these outcomes, they and their friends could petition the Justices or the King for a pardon or reduced punishment.

Punishments, particularly for felons, changed dramatically during the century. While some changes, such as the reduced role of the death penalty and the growing use of imprisonment, can be attributed to cultural developments such as a decreasing tolerance of violence and a renewed belief in the reformative potential of hard labour, a major stimulus for change was the repeated crime waves which Londoners experienced (or thought they experienced) during the century, which led politicians and the judicial authorities to search repeatedly for new, more effective methods of reducing crime. It was the pressure of London crime, therefore, which forced the pace of change in national penal policy. Also important were the various acts of resistance to penal innovation by convicts, which helped shape the limits of the possible.

With the exception of the Old Bailey Proceedings and the Ordinary's Accounts (OA), the documents included on this website contain relatively little direct evidence of punishments, though the Sessions Papers (PS) and Orders of the Court (OC) include petitions, reports and justices' orders. Further information about all the punishments discussed below can be found on the Old Bailey Proceedings Online.

For Misdemeanours

The vast majority of those convicted of petty offences were fined, with the level of the fine determined by statute or by the discretion of Justices of the Peace, according to the nature of the offence and the sex and social status of the offender. The most frequently levied fine in the late seventeenth and early eighteenth century was 3s 4d (three shillings and four pence, or one quarter of a mark), with 84 per cent of all fines amounting to 13s 4d (one mark) or less.1 Occasionally much higher fines were levied, usually in an attempt to force the convict to reach a private agreement with the prosecutor over the payment of damages, in which case the fine was significantly reduced. Evidence of these negotations can be found in the Sessions Papers (PS).

Petition from George Irving concerning the one hundred pound fine imposed on him after he was convicted for assault. London Metropolitan Archives, Middlesex Sessions Papers, December 1720, MJ/SP/1720/12, LL ref: LMSMPS501900042.

Other punishments for petty offenders included committal to prison or a house of correction, whipping, the pillory, or to be required to provide sureties for good behaviour.

Death

Historically, felons were punished by death, but the King was able to pardon those offenders he did not wish to see executed. The availability of benefit of clergy significantly reduced the number of felons executed, but fears about the growth of crime during the eighteenth century led to the withdrawal of many offences from benefit of clergy, and the creation of new capital offences, creating what became known as the bloody code. Nevertheless, counteracting this trend, over the course of the late seventeenth and eighteenth centuries a growing unwillingess to see large numbers of offenders executed meant that increasing numbers of felons were spared death by being convicted on a reduced charge or pardoned.

There was still support for the execution of the most serious offenders, however, and in certain contexts, such as the 1720s and 1780s, which both experienced crime waves and political instability, the proportion of convicts executed increased. In selecting those to be hanged the King and his cabinet (which reviewed the cases of all those sentenced to death in London) paid attention to the nature of the offence, the character of the prisoner, and the state of crime at the time. There was a particular concern to punish members of criminal "gangs".2

By mid century, fears about the growth of violent crime and concerns that the death penalty was not working to deter it led to the passage in 1752, in the middle of a post-war crime wave, of the Murder Act.3 This mandated that those convicted of murder should be executed within two days of the trial, and that their bodies were either to be delivered to surgeons to be "dissected and anatomized" or publicly hung in chains. The delivery of the bodies of executed murderers directly to the surgeons helped prevent the riots over the custody of bodies which had frequently occurred following executions.4

John Perrott hanged at Smithfield.  A crowd can be seen in the foreground with gallows visible behind, where the executioner gestures to the crowd while holding victim, who has rope around neck Samuel Wale. 'John Perrott hanged at Smithfield. c.1761-1786 (a pen and ink study for Tyburn Chronicle, Vol IV, p162). British Museum, Binyon 15. © Trustees of the British Museum.

Worries about the conduct of execution crowds continued, however, as it was thought that the crowds sympathized with the convict, treated the event as a carnival, and failed to learn the right lessons. This contributed to the removal of executions from Tyburn (where Marble Arch stands today) to in front of Newgate Prison in 1783. The often disorderly procession carrying the condemned from Newgate to Tyburn in carts was abandoned, and executions were carried out earlier in the day and more efficiently. The introduction of the drop led the condemned to die quicker with less struggle, giving them less chance to elicit sympathy from the crowds.

Nonetheless, by the 1780s public unease about the death penalty placed severe constraints on its use. Victims of crime, reluctant to be responsible for executions, often either refused to prosecute or charged the accused with a non-capital offence. Despite serious concerns about crime in those years, the authorities limited the number of offenders actually executed because they feared that too many executions would not only antagonise the respectable classes but also lead to popular disorder. This is the background to the remarkable episodes in 1789 when nineteen convicts essentially dared the state to execute them by refusing to accept the royal pardons offered to them, in full knowledge that the authorities did not want more executions.

Transportation

Concerns about the failure of the death penalty to deter crime, and a desire for a substantial alternative punishment for serious offenders who were not executed, led to a dramatic increase in the use of secondary punishments in the eighteenth century. At the start of the century those who received benefit of clergy or conditional pardons were typically branded on the thumb, but this was seen to be an insufficient deterrent to crime.

Transportation dates from the seventeenth century, but the number transported was relatively low, because the cost of the voyage had to be paid for either by the convict or a merchant or shipowner. The key innovations of the 1718 Transportation Act5 were that judges could directly order transportation as a punishment, and that the state would pay for it. The act was passed during a period of political instability, following the Hanoverian Succession, and during a period of intense concern about crime in London. Lobbying by the City of London, and particularly its Recorder, William Thomson, was instrumental in the passage of the act .6

A set of wrought iron eighteenth-century shackles Eighteenth-century Shackles. National Museum Liverpool, Accession number 56.24.135. © National Museum Liverpool.

Similar concerns contributed to the passage of a new Transportation Act in 1784. Following the outbreak of the American War in 1776 transportation to America had to be abandoned, and male offenders were sent to the hulks instead. High mortality rates, escapes and mutinies highlighted the need to resume transportation, particularly for what were perceived to be incorrigible offenders who were too dangerous to release. Following the Gordon Riots in 1780, and the crime wave which followed the end of the American War in 1783, pressure for the resumption of transportation increased, and the courts began to sentence offenders to transportation even before the government had decided where they should be sent; these convicts languished in Newgate Prison. The pressure created by overcrowding in Newgate directly led to the government's search for a new destination.7 In this way, crime in London became the driving force behind the reintroduction of transportation, and indeed in subsequent years London convicts were proportionately much more likely to be transported than those from the rest of the country.8

Transportation was often resisted by convicts, who feared the consequences of a long sea voyage and of being put to forced labour in a strange foreign land. Many petitioned the king asking for a lesser punishment or a free pardon, and an unknown number were successful, thus explaining why some convicts sentenced to transportation, such as John Page, remained in London and subsequently appeared at the Old Bailey charged with another crime.9 In addition, some of those who were transported returned early. During the eighteenth century 243 men and women were tried for returning from transportation at the Old Bailey, approximately 1.6% of the number sentenced to transportation from that court.10 These numbers peaked in 1783-84 when new destinations for tranportees were experimented with, including the West Coast of Africa, causing intense anxiety among convicts and leading to mutinies on two convict ships. In 1785 Henry Aikles, who failed to fulfill the condition of his pardon and transport himself to America, was acquitted of the charge of returning from transportation on the grounds that he was unable to travel due to ill health, thereby establishing some legal limits on the practice of transportation.

Unwillingness to travel to a place where they would be devoured by savages lay behind the convicts who refused the royal pardon in 1789.

Complaint against the keeper of the Middlesex house of correction for mistreating prisoners and allowing convicts to escape. London Metropolitan Archives, Middlesex Sessions Papers, October 1711, MJ/SP/1711/10, LL ref: LMSMPS501250106.

Imprisonment

This section examines imprisonment as a punishment; for descriptions of specific prisons, and the improvements carried out in prison buildings in the eighteenth century, see the separate pages on prisons and houses of correction.

Prisons traditionally were places for holding accused criminals and convicts while they waited for their trials to take place, or sentences to be carried out. Run by keepers who charged fees for almost every service provided in order to make a profit, prisons were relatively open places where prisoners and visitors intermingled. Along with the serious and petty criminals, some prisons held large numbers of debtors, whose poor chances of release probably contributed to their reputation, and the reputation of prisons more generally, for disorderly behaviour.

The idea that incarceration at hard labour could actually contribute to the reform of offenders dates from the sixteenth century, but at that time this was only thought possible for petty offenders, such as vagrants and prostitutes, who were punished in houses of correction. The first attempt to reform felons through imprisonment at hard labour occurred in 1706, when an act, in response to a petition from the City of London, authorised incarcerating felons who were granted benefit of clergy in houses of correction, where they were to be put to hard labour.11 The act was not a success, because no extra funding was given to the keepers to provide the extra security needed for holding felons, and owing to concerns about the failure of houses of correction to reform prisoners and prevent escapes. Following the passage of the Transportation Act in 1718, convicts granted benefit of clergy were transported instead.

A number of factors led to renewed interest in imprisonment as a punishment for felons in the 1770s. There was growing dissatisfaction with both transportation and the death penalty, both of which had manifestly failed to prevent repeated increases in crime. Second, there was growing belief in the merits of imprisonment at hard labour as a means of reforming offenders. But the most important stimulus to the use of imprisonment in the 1770s was the collapse of transportation in 1776: the number of convicts sentenced at the Old Bailey to a term of imprisonment increased from 14 in 1775 to 135 the following year when war broke out.

A black, stone built prison, with a narrow door below a high arch Detail: The Felon's Door, from Harry Basford, London Historic Buioldings, A Series of Illustrations (1950), p.45. © Harry Batsford.

The number of convicts sentenced to imprisonment dropped when transportation resumed in 1787, but it did not fall back to pre-1776 levels. While it was still thought that the most serious offenders who were not executed needed to be exiled from the country, the belief remained that less serious felons, especially the young, could be reformed through a period of incarceration at hard labour.

Pardons and Pleading the Belly

Following the conclusion of each sessions at the Old Bailey, the Recorder of the City of London sent a report to the crown on all the convicts who had been sentenced to death, recommending some for pardons. Convicts could also appeal their sentences by petitioning the King directly for a pardon. On the basis of this information, the king and his cabinet regularly reviewed all death sentences from the Old Bailey, identifying the most egregious cases for execution while pardoning those for whom there were mitigating circumstances. It was important to ensure that the number of executions which took place in the metropolis was neither too few as to undermine the deterrent function of the punishment nor too many as to constitute a threat to public order.

Large numbers of offenders were pardoned, either with a free pardon, or a conditional pardon, which commuted the sentence to a lesser punishment. Decade by decade, between 42 per cent and 77 per cent of those sentenced to death at the Old Bailey were pardoned, an average of just over 60 per cent for the whole of the eighteenth century.12 The decision to grant a pardon was taken on the basis of the state of crime at the time, the nature of the offence, the sex, age and character of the offender, and the status of those who petitioned on his or her behalf.

Women had an additional opportunity to avoid execution, by pleading that they were pregnant. Such women were then examined privately by a jury of matrons, chosen from women who were present in the courtroom, who were asked to determine whether the woman was "quick" with child (if movement could be detected, signalling the start of life). If so, the woman's punishment was respited until the child was delivered, at which point in most cases, but not all, the woman was given a full pardon.

Jury of matrons which examined Mary Morris and found her not quick with child, 1761. London Metropolitan Archives, Middlesex Sessions Papers, MJ/SP/1761, LL ref: LMSMPS505050002.

In the late seventeenth and early eighteenth centuries around half of all women sentenced to death pleaded their bellies, and almost two thirds were found quick with child and their punishment was respited. The remarkably large number of women who avoided punishment in this manner suggests that some women were making false claims, and that, as one observer complained, they found sympathetic female friends who made themselves available to serve on the jury of matrons, and colluded with them.13

After 1725, however, the proportions both of women making this claim and of those who did being found quick with child declined dramatically, such that by the last quarter of the century only 2 per cent of those sentenced to death pleaded their bellies, and only 25 per cent of these claims were found to be true.14 The cause of this dramatic change is unknown, but it may be that the authorities exerted greater control over the selection of juries of matrons, or perhaps pregnant women were excluded from the judicial process before the trial and sentence took place. Certainly the general trend in the late eighteenth century was for greater sympathy to be shown to mothers, not less.

Refusing the Royal Pardon

While for most of the eighteenth century most of those sentenced to death actively pursued a royal pardon in order to save their lives, in 1789 a remarkable reversal took place when seven women and twelve men who had been sentenced to death refused to accept the royal pardon which had been offered to them. The pardon was conditional upon transportation to Australia, and to accept the pardon meant to agree to be transported to the other side of the world to a place where, according to reports from the first fleet which had just arrived in London, conditions were difficult and the natives were murderous. Encouraged by a belief in their own innocence, and their anger at conditions in the overcrowded Newgate Prison, these convicts decided to create a dilemma for the authorities by claiming that they would prefer to be executed rather than submit to transportation. They were fully aware that public hostility to the large number of executions meant that the authorities were loathe to carry out more executions. While the convicts' defiant behaviour attracted widespread attention, eventually all the convicts caved in and accepted the pardon. Nonetheless, this revolt prompted the authorities to revise the processes of sentencing and pardoning in order to reduce the amount of discretion exercised, both by the courts and by convicts. From 1797, conditional pardons were tantamount to orders: it was no longer necessary for convicts to accept a pardon in order for it to take effect.15 Once again, pressures created by those accused of crime helped shape the evolution of the criminal justice system.

Exemplary Lives

Lives using the keywords Death Sentence:

Lives using the keyword Executed:

Lives using the keywords Pleading the Belly:

Lives using the keyword Transportation:

Introductory Reading

  • Beattie, J. M. Crime and the Courts in England 1660-1800. Princeton, 1986.
  • Beattie, J. M. Policing and Punishment in London, 1660-1750: Urban Crime and the Limits of Terror. Oxford, 2001.
  • Devereaux, Simon. The Making of the Penitentiary Act, 1775-1779. Historical Journal, 42 (1999), pp. 405-33.
  • Devereaux, Simon. In Place of Death: Transportation, Penal Practices, and the English State, 1770-1830. In Strange, C. ed., Qualities of Mercy: Justice, Punishment, and Discretion. Vancouver, 1996, pp. 52-76.
  • McGowen, Randall. The Problem of Punishment in Eighteenth-Century England. In Devereaux, Simon and Griffiths, Paul, eds, Penal Practice and Culture, 1500-1900: Punishing the English. Basingstoke, 2004, pp. 210-231.
  • Shoemaker, Robert Prosecution and Punishment: Petty Crime and the Law in London and Rural Middlesex. Cambridge, 1991.

For further reading on this subject see the London Lives Bibliography.

Footnotes

1 Robert Shoemaker, Prosecution and Punishment: Petty Crime and the Law in London and Rural Middlesex (Cambridge, 1991), p. 156.

2 J. M. Beattie, Crime and the Courts in England 1660-1800 (Princeton, 1986), p. 513.

3 25 George II c. 37.

4 Peter Linebaugh, The Tyburn Riot Against the Surgeons, in D.Hay, et al., eds, Albion's Fatal Tree: Crime and Society in Eighteenth-Century England (1975), pp. 65-117.

5 4 George I c. 11.

6 J. M. Beattie, Policing and Punishment in London, 1660-1750: Urban Crime and the Limits of Terror (Oxford, 2001), chap. 9.

7 Simon Devereaux, In Place of Death: Transportation, Penal Practices, and the English State, 1770-1830, in C. Strange, ed., Qualities of Mercy: Justice, Punishment, and Discretion (Vancouver, 1996), pp. 52-76.

8 Simon Devereaux, Imposing the Royal Pardon: Execution, Transportation and Convict Resistance in London, 1789, Law and History Review, 25 (2007), p. 128.

9 Between 1761 and 1770 284 petitions from throughout the country for remissions from transportation were successful: A. Roger Ekirch, Bound for America: The Transportation of British Convicts to the Colonies, 1718-1775 (Oxford, 1987), p. 40.

10 Calculations performed using the Old Bailey Online statistics search function.

11 5 Anne c.6.

12 V. A. C. Gatrell, The Hanging Tree: Execution and the English People, 1770-1868 (Oxford, 1994), Appendix 2, Table 1, p. 616.

13 Alexander Smith, The History of the Lives of the Most Noted High-way Men, Foot-pads, House-breakers, Shop-lifts and Cheats, of Both Sexes, 2 vols (2nd edn, 1714), II, pp. 184-85; James Oldham, On Pleading the Belly: A History of the Jury of Matrons, Criminal Justice History, 6 (1985), pp. 17, 23.

14 Oldham, On Pleading the Belly, Appendix 1, pp. 33-37.

15 Devereaux, Imposing the Royal Pardon, pp. 101-38.