by Lucy Moore
However, while the number of capital crimes rose in this period, the number of villains actually executed declined. The ruling classes preferred to display their power by granting pardons, often apparently arbitrarily, to convicted felons, rather than by treating them with consistent and humane justice. The regularity of pardons ‘allowed the class that had passed one of the bloodiest penal codes in Europe to congratulate itself on its humanity’.[164] The system created an artificially intimate relationship between the accused and the meter-out of justice. Once condemned, the prisoner was utterly dependent on the whim of the judge, or the mercy of the king, or the patronage of his protector, to save him from the gallows or have his sentence reduced to transportation instead of hanging. The theory behind this highly personal approach to punishment was that the judge should use his discretion to distinguish between crimes mitigated by circumstance or by the nature of the crime itself. In fact, it was a means through which the highly personalized system of patronage and dependency was perpetuated, encouraging the reliance of the lower classes on the gentry who controlled most aspects of their lives.
Mercy and lenience did exist, despite the harshness of the laws. Many victims of crime were reluctant to press charges for a minor misdeed, like the theft of a silk handkerchief, because they knew that the miscreant would almost certainly be sentenced to hang. Stealing anything worth over one shilling was punishable with death, but something worth less than a shilling merited only branding in the hand. Judges, too, were sometimes willing to undervalue a piece of stolen property used as evidence to soften the sentence, perhaps from hanging to transportation to the Americas, instituted in 1719. First-time offenders were usually treated with mercy, as were those driven to steal by necessity, or those who committed a crime but were unarmed. Confession and returning what had been stolen also helped a defendant’s defence.
The new laws created in the early eighteenth century were intended either to encourage commerce, which included legislation against forgery and smuggling, or to bolster property rights, such as the Black Act of 1723, and the many new and revised acts against robbery and receiving. It was not until the middle of the century that the first hesitant steps towards a police force were taken under the guidance of Henry and Sir John Fielding, half-brothers who were successively magistrates of Bow Street in Covent Garden for over a quarter of a century from 1749. Henry Fielding believed that to live with the constant threat of assault and robbery was not liberty, but anarchy; he held that true liberty was each person’s freedom to enjoy their life in safety, and that this could only be achieved with the aid of a regular, uncorrupted band of law-enforcers. It is ironic that in part he used Jonathan Wild’s methods of thief-taking as the basis for his Bow Street Runners.
Chapter Eleven – Punishment
In eighteenth-century England the severest penalty was reserved for treason. The offender would be ‘drawn to the place of execution on a hurdle’,[165] and there hanged, cut down while still alive, disembowelled, castrated, beheaded and finally quartered. Compared to contemporary French punishments, which revelled in red-hot pincers and drops of burning oil, this was relatively humane. Petty treason — the murder of a master — like grand treason, was considered a direct challenge to society’s moral order. It was punished simply by drawing the miscreant on a hurdle to the gallows and hanging him there. A woman convicted of murdering her husband, also petty treason, was burned. In many cases, the executioner would strangle the woman before the flames reached her, or ensure the hanged man died on the gallows before he was cut apart. Mercy was at the discretion of the individual; but barbarity was the state’s decree.
For lesser offences, such as manslaughter, the court might sentence a malefactor to burning in the hand, which involved being branded by a hot iron. For a fee of 13½d., though, the brand would be dipped in cold water before it touched the skin, vastly lessening its effect. Public or private flogging was another common punishment, inflicted only on those considered not to be of gentle birth. The most common method was called being flogged ‘at the cart’s tail’. The prisoner would be stripped to the waist, tied on to the back of a cart, and whipped until his or her back was bloody as the cart travelled its charted route. This was the usual action taken against prostitutes.
Whipping and the pillory were very public humiliations, usually for crimes that offended society’s norms in some way. Cheating at cards, fortune-telling, falsely accusing someone of fathering an illegitimate child, or of making ‘sodomitical advances’, were all punished by the pillory. One man was pilloried for saying that ‘he hoped to see all Protestants fry in their own grease before Michaelmas next’.[166] When someone was pilloried, a description of their crime was clearly displayed above their head. They would be sentenced to stand for an hour or two, exposed to the wrath of the assembled crowds. Charles Hitchin, Jonathan Wild’s old rival, died as a result of injuries inflicted on him when he stood in the stocks, as did Colonel Charteris’s procuress, Mother Wisebourne. Sometimes, though, the people came out in defence of the accused party. A man pilloried at the Royal Exchange for speaking out against King George I was released by a sympathetic mob. In 1703 Daniel Defoe was pilloried in Cheapside and then in the Temple for sedition. He was covered in flowers as he stood in the stocks while all around him drank his health and sang his ‘Ode to the Pillory’.
Defoe was unusual in that, though an educated man, he was punished as a commoner. Although the English prided themselves on the egalitarianism of their penal system, the majority of those punished by the law were young, ill-educated men, often apprentices from a poor background. Fewer women than men were found guilty of felonies; women were also more likely to avoid execution if convicted, ‘pleading their belly’, or claiming they were pregnant. If a condemned woman was found to be pregnant, and it was always easy to get pregnant quickly, especially in Newgate, her sentence would be deferred or reduced to transportation.
One early eighteenth-century Solicitor-General, Archibald MacDonald, estimated that of every twenty offenders executed in London at the time, roughly eighteen would be under the age of twenty-one. By this reckoning, Jack Sheppard was lucky to live to twenty-three. Forty per cent of Tyburn’s victims were or had been apprentices, like Sheppard. The Ordinary of Newgate believed being ‘bred to no trade’ was a factor that contributed to the high numbers of young people dying on the gallows; young men like Jack Sheppard, in fact more than half of all London’s apprentices, who had left their master before completing their term of apprenticeship, fell into this category. Unable to succeed through the routes offered to them (learning a trade and then setting up their own business) they rejected convention and turned instead to crime, following the path down which Hogarth’s Idle Apprentice slipped.
The moral dissolution of the lower classes, illustrated by Hogarth in his series of prints, Industry and Idleness, was exactly what the government hoped to reverse by its harsh penal code. The aim of punishment in the eighteenth century was to uphold the authority of the law, instilling in the common people a reverence for and obedience to the government. Hanging, in particular, was designed to be a demonstration of the power of the state over those who refused to conform to its rules. As the saying went, ‘Men are not hanged for stealing horses, but that horses may not be stolen.’ It had the dual purpose of ridding society of malefactors and serving as an example to others who might be tempted to crime. Death, the ultimate punishment, was also seen as the ultimate deterrent. Therefore, the more people who witnessed the state exercising its power to take the lives of lawbreakers, the greater the state’s control over the bulk of the population. Public execution
is a ceremonial by which a momentarily injured sovereignty is reconstituted. It restores that sovereignty by manifesting it at its most spectacular...Its aim is not so much to re-establish a balance as to bring into play, at its extreme point, the dysymmetry between the subject who had dared to violate the law and the all-powerful sovereign who displays his strength.[167]
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p; The criminal effectively challenged the state’s power by committing a proscribed act; and hanging or burning was the state’s chosen method of displaying its continued power and control over these threats to the order of society. For these purposes, men condemned to death who publicly confessed and repented on the scaffold were the government’s ideal victims. Repentant sinners reinforced the legitimacy and authority of the government by asserting its rectitude while accepting their fate. If punishment is no more than a social ritual, then the victims of punishment who complied perpetuated the authority of the state through their deference.
But as the eighteenth century wore on, the accused increasingly refused to bow their heads and beg forgiveness for their sins. Fielding called the condemned men at Tyburn ‘triumphant’. He continued, ‘[public executions] tend rather to inspire the vulgar with a contempt of the gallows rather than a fear of it’. Bravery on the scaffold was the felons’ only way of defying to the end the laws and society that had been their downfall. ‘Making a good end’ was part of a criminal’s code of honour: ‘those that die merrily, or that don’t at least show any great fear of death, are said to die like gentlemen’.[168]
Not only was the prisoner’s personal honour satisfied by putting on a brave face in front of the crowds at Tyburn, but a vague sense of collective pride was felt by the crowd as they watched one of their number die with courage — or at least, with bravado. ‘Of the ragamuffin class [at Tyburn]...many expressed their admiration of the fortitude, as they termed the hardness and stupidity, of one of the sufferers.’[169] At executions where the crowd showed its support for the criminal, the power of the state was ridiculed. The mob’s strong identification with the condemned men they watched hang only reinforced their hostility to authority. People cried out, watching a hero die, ‘hoping the Ld will deliver him out of the hands of his adversaries; meaning the laws of the country’.[170]
An element in the popular fascination with criminals, and especially the spectacle of their execution, might have been the way in which these hangings brought death close to people’s lives. In a time when violent death and dreadful diseases were accepted facts of daily life, perhaps it was better to embrace the spectre of death than to try to avoid it. Applebee’s Journal commented philosophically on the crowds who turned out to watch four men die at Tyburn.
And are they not all under an absolute indefeasible sentence?...and with this difference too, that many of the rest shall die in torture and terror, ten thousand times more grievous than those four. Nay, perhaps few of the thousands who will go to see these few people die shall get so easy a passage out of life.
The bulk of the population would not have had such a rational approach to hangings. Superstition still governed the lives of the common people. Hair was cut at the full moon; blood was let in springtime. The rituals surrounding the dead bodies of felons show what sway folk-magic still held over the inhabitants of what was arguably the most sophisticated city in Europe. Even the government subscribed to these traditional beliefs. If a condemned man committed suicide while awaiting execution, his body was not merely buried. A stake was driven through it to prevent his spirit becoming a ghost; he was then buried at night at a crossroads, which would diffuse the evil trapped in his body. Ironically, some of the mystique once attached to the crown had been transferred to criminals: the monarch had once touched people to rid them of the King’s Evil (scrofula); by the eighteenth century the king or queen no longer claimed these healing powers, but the touch of a dead felon’s hand was thought to cure the disease.
The educated classes scorned the masses’ easy acceptance of their heroes’ shows of defiance.
Most of them die like beasts, without any concern, or like fools, for having no other view than to divert the crowd...Though there’s something very melancholy in this, yet a man can’t well forbear laughing to see these rogues set themselves off for heroes, by an affectation of despising death.[171]
They saw the blustering disregard of the dying men as little more than a front designed to distract the crowd from their fear of death.
The terror of death inwardly excruciates him; but his fear of showing this, of being called a coward, and laughed at by his companions, has some command over his outward appearance...But his impudence would soon fail him, and his inexhaustible stock be but a weak match for the agonies he suffers, if he took not refuge in strong liquors.[172]
Jack Sheppard was not outwardly drunk when he died — he needed his wits about him if he was to escape, as he hoped until the very last minute to do. Blueskin Blake, however, was reeling drunk when he was hanged, his swagger a poor defence against the prospect of eternity, like Gay’s Macheath, who drowns his worries in drink as he sits in his cell awaiting death.
Since I must swing — I scorn,
I scorn to wince or whine.
But now again my spirits sink;
I’ll raise them high with wine.
But valour the stronger grows,
The stronger liquor we’re drinking.
And how can we feel our woes,
When we’ve lost the trouble of thinking?
If thus — A man can die
Much bolder with brandy
So I drink off this bumper — And now I can stand the test,
And my comrades shall see, that I die as brave as the best.
Regardless of whether their show of contempt for death was real or not, the refusal of the dying men to submit meekly to the state’s punishments lessened the impact of public executions. ‘Ritual punishments depended for their effectiveness as a ceremonial deterrence on the crowd’s tacit support of the authorities’ sentence.’[173] If the crowd supported the man about to be punished, rather than the state as punisher, there was little the state could do to swing public feeling back behind it. The ceremony of death, intended to define and reinforce the state’s authority, could become instead a celebration of resistance to that same authority. The crowd’s support justified the criminal’s defiance.
The government did its best to limit displays of resistance. Last dying speeches that challenged the Hanoverian succession, or denied the inviolability of private property, or flouted approved norms of behaviour were suppressed. So little could spark a curious crowd into a violent mob — such as the scuffle over Jack Sheppard’s body, which caused riots that lasted throughout the night of his death — that the government was forced to become cautious.
Persistent popular resistance to authority on hanging days — verbal abuse, stones thrown at the executioners, guards and soldiers, and attempts to seize the condemned men — gradually changed the elite’s views on public executions. Although some political thinkers, such as the anonymous author of the 1701 pamphlet, ‘Hanging: Not Punishment Enough’, believed only harsher treatment would curb the rising incidence of crime, most were coming round to the idea of reform. Why should we delight in the intrepidity, though it was real, of a villain in his impiety?’ The spectacle of hanging days clearly did not inspire either the dying man, or his supporters, with the proper respect for his impending doom and by extension for the authority that had meted out that doom. Bernard de Mandeville believed that far from deterring people from crime, public executions positively encouraged them to it:
The notions which the vulgar have of courage, as well as honour and shame, are full of dangerous errors. Compliments, as well as reproaches, when ill-applied, are often the causes of great mischief; and I am now persuaded, that the perverseness of opinion now reigning amongst us, both in applauding and discommending the conduct of criminals in their last hours, is an accessory evil, that very much contributes to...the frequency of executions.
The celebration of criminals like Jack Sheppard made the criminal lifestyle seem desirable — as indeed it probably was, for an able, frustrated man or woman living on the edge of survival. The inability of the government to control the exhibition of punishment reflected their parallel failure to accommodate a huge proportion of London’s population.
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bsp; ‘I will appeal to any man who bath seen an execution, or a procession to an execution,’ wrote Henry Fielding in 1751,
Let him tell me when he hath beheld a poor wretch, bound in a cart, just on the edge of eternity, all pale and trembling with his approaching fate, whether the idea of shame hath ever intruded on his mind? Much less will the bold daring rogue who glories in his present condition, inspire the beholder with any such sensation.
The reform movement that had started with the institution of houses of correction and workhouses at the turn of the eighteenth century, impelled by the crusading zeal of the Reforming Societies, by the middle of the century turned its attention to punishment. Religious conviction fuelled this change of attitude. ‘The greater provision we make for the souls and future happiness of these short-lived sinners, the less indulgence we should have for their bodies and sensual appetites.’[174] Genuine religious repentance was thought to be a better example to the populace than a showy public renunciation of moral and social values. The death penalty was still seen as the ultimate deterrent: but instead of making a public display of it several times a year, it was carried out before a restricted audience, and with humanity. Thus the automatic drop — intended to cause the neck to break at once, thus resulting in almost instantaneous death — was introduced in 1760; and after 1783, all executions took place just outside prisons. It was not until 1868 that they were performed without an audience, once public opinion had turned against the death penalty. The Daily News, covering the last public hanging in 1868, said that the ceremony ‘made the law and its ministers seem to them [the public] the real murderers, and Barrett [the victim] to be a martyred man’.
